Caesar judging Caesar: lay-person membership of a federal judicial commission
18.09.23
Quis custodiet ipsos custodes – who watches the watchmen? As long as there have been judges, there have been concerns about regulating judges who misbehave. Most recently, the Albanese government has responded with ‘in-principle’ agreement to the Australian Law Reform Commission (‘ALRC’)’s recommendation for the establishment of a federal judicial commission, and has released a discussion paper on the topic.
This post first briefly summarises the case for a federal judicial commission, a proposal which has been mooted for decades but has only recently gathered broad support from the legal sector. It then argues that, to perform its role of maintaining public confidence in the judiciary, the commission should include lay-people as members. (In this post, the term ‘lay-person’ refers to someone disconnected from the three branches of government – for example, a legal practitioner, an eminent community figure, or simply a member of the public. The operative aspect of lay-personhood is that a person does not hold a role within the legislature, executive or judiciary, and has not held one in the past.) Finally, constitutional concerns regarding the inclusion of non-judicial members are addressed. The post concludes that, while the inclusion of lay-members in a commission may raise unique constitutional concerns, these concerns are unlikely to pose an insurmountable obstacle so long as suitable qualification requirements are implemented for lay-members.
Why a commission, and why now?
The case for a federal judicial commission may not be immediately obvious. After all, Australian judges generally behave very well. Unfortunately, there are always some judges whose conduct may warrant investigation as potentially harmful to public trust in the judiciary. Take the case of Judge Salvatore Vasta of the Federal Circuit and Family Court. A string of Judge Vasta’s decisions have been overturned in recent years, with appellate courts criticising his Honour for his ‘lack of composure, rudeness to litigants and errors of fact and law’. In one instance Judge Vasta ‘attempt[ed] to bully’ a party before the court (Lysons v Lysons); in another, he sentenced a man to twelve months’ imprisonment for contempt of court for not bringing the correct documents. The sentence was overturned, and described by the Full Court of the Family Court as ‘disturbing’ and an ‘affront to justice’ (Stradford v Stradford). This case resulted in a civil action brought by Mr Stradford (the applicant’s court-assigned pseudonym) against Judge Vasta. In a recent and highly publicised decision, the Federal Court found Judge Vasta to be personally liable for false imprisonment of Mr Stradford. The Court held that Judge Vasta could not claim the benefit of judicial immunity, in part because he had acted without or in excess of his jurisdiction in committing a ‘gross denial of procedural fairness and breach of the rules of natural justice’ (Stradford (a pseudonym) v Judge Vasta). And yet, despite this pattern of behaviour, no independent investigation into his Honour’s conduct has taken place.
Indeed, Australia’s federal judges are largely unaccountable beyond the traditional avenues of appeals, open justice and ultimately removal. However, as the cases discussed above demonstrate, these traditional avenues lack remedial force. A judge being criticised on appeal or having their decisions exposed to the light of public scrutiny will not always change their behaviour. The possible exception to this absence of remedial accountability is the informal role played by each court’s head of jurisdiction in receiving complaints, investigating and trying to resolve them. Judge Vasta, for example, was requested by Chief Judge Alstergren to ‘receive mentoring’ following a complaint about his behaviour from the Law Council of Australia. However, judges are not required to comply with requests made by their heads of their jurisdiction; for example, Justice Lionel Murphy is rumoured to have declined Chief Justice Gibbs’ request to resign after an investigation was opened against the former for perverting the course of justice – and would have been entirely within his rights to do so. Short of both houses of Parliament requesting that the Governor-General remove a judge, the other branches of government have very limited power to discipline judges who conduct themselves inappropriately. This lack of external accountability stems from principles regarding the separation of powers and judicial independence. These principles are safeguarded both by the big-C constitutional protections in ch III and small-c constitutional norms dating back to the Act of Settlement 1701 (UK), and will be addressed in greater detail in the final section of this post.
Federal judges must be able to administer the law without fearing retaliation for ruling against the government. Nonetheless, calls for an independent judicial commission at the federal level to promote greater accountability have been made for decades. In the ALRC’s consultation with Australian legal practitioners for its recent report on judicial impartiality, those calls reached a crescendo, with the Commission recommending its establishment. A more effective complaints procedure for judges was ranked as the most important overall reform to maintain public confidence in the judiciary. There appears to be a broad consensus in the profession that federal judges must be more accountable for poor behaviour. Perhaps this consensus has developed following the investigation into Dyson Heydon and Kiefel CJ’s public and candid response to the findings. The strong track record of judicial commissions in five states and territories (Victoria, New South Wales, South Australia, the Australian Capital Territory, and the Northern Territory), with a sixth set to be introduced in Western Australia, may also have convinced practitioners in these states of the value of a commission at the federal level. Whatever the reason, the prevailing mood in favour of a commission is clear.
The composition of a federal judicial commission
As discussed, calls for a commission have focused in large part on the role such a body could play in maintaining public confidence in the judiciary. A judiciary perceived as unaccountable might encounter a crisis of legitimacy, with its authority as the arbiter of the rule of law no longer accepted. Since, as Alexander Hamilton famously wrote, the judiciary controls neither the sword nor the purse, its power inheres only in the respect it commands with those who come before the courts. Gibbs CJ, Mason, Wilson and Brennan JJ described this succinctly in Gallagher v Durack: ‘the authority of the law rests on public confidence’ (at 245). This section argues that, for a commission to effectively maintain and enhance this public confidence, inclusion of lay-members – persons who are not part of any branch of government, and have not been in the past – is essential.
Literature in fields like deliberative democracy has shown that lay-person involvement in law- and decision-making produces enhanced public confidence in the outcomes. Lay-person inclusion in crucial function of state has been presented as a potent antidote to our current climate of distrust in government and political elites. Susan Denham SC (former Chief Justice of Ireland) sees a judicial commission that includes lay-members as a key component in maintaining the judiciary’s independence, accountability, and modernity – the factors that render it ‘the diamond in a democracy’. Indeed, multiple successful judicial commissions (including California, New Zealand, New South Wales, Victoria, the ACT, and the NT) originally included, or have moved towards including, lay-members. A federal judicial commission should embrace the theoretical and empirical evidence that lay-membership would increase public confidence in investigations. To do so will avoid the dangerous perception of a partial commission in which Caesar judges Caesar.
Moreover, lay-membership of the commission would help to reinforce the essentially public function of the justice system. In this context, Judge Elmo Hunter of the US District Court for the Western District of Missouri has observed that:
the lay-men … help remind the other commission members that the courts are not just to serve lawyers and their interests, but truly and ultimately belong to the people who are entitled to the best’.
Some commentators have referred to this as a ‘responsive’ model of judicial accountability, one focused on the interests of the public and the social function performed by the courts. Importantly, as the Hon Tom Bathurst AC KC has argued, this should not simply be a view of the public as ‘customers’ of a publicly-funded dispute resolution apparatus. To borrow the Hon Murray Gleeson AC KC’s example, to say that in Mabo v Queensland (No 2) the High Court resolved a dispute between the state of Queensland and some peoples of the Torres Strait Islands would be to miss the wood for the trees. Rather, ensuring that the public interest remains central to our justice system is a recognition of the critical role that courts play in the cohesion of civic society. A responsive judicial culture could be further developed by ensuring the voices of lay-people are heard in a judicial commission.
Constitutional concerns regarding lay-members
The final section of this post considers possible constitutional issues regarding lay-membership of a judicial commission. A federal judicial commission is in constitutionally untested waters, meaning that commentators are uncertain about what shape a constitutional challenge to the commission would ultimately take. Such a challenge would likely argue that the commission is incompatible with ch III of the Constitution and the separation of powers enshrined therein. But even then, the precise form of a challenge remains uncertain. I suggest two reasons for this uncertainty. The first is the obvious fact that it is difficult to concoct a hypothetical judgement regarding a hypothetical piece of legislation. The second is that, as James Stellios has recently argued, ‘finding consensus on a clear function to be performed by the separation of judicial power principles remains elusive’. Whether a commission offends the separation of powers and judicial independence raises questions about the nature of judicial power itself – questions that remain still unsettled in the High Court’s jurisprudence. As will be discussed, the objectives pursued by the separation of powers are relevant to assessing whether the commission infringes upon the Constitution.
Ample scholarship has addressed concerns regarding the general constitutional validity of a judicial commission, as well as recent submissions to the Attorney-General’s Department discussion paper mentioned above (see in particular those made by Professors Appleby and Le Mire and the Law Council of Australia). This section will instead consider the more specific issue of whether there are unique constitutional concerns that arise from including lay-people (cf non-judicial members more generally) in the commission. This question is important because some objections to lay-membership also apply with equal, if not greater, force to objections to executive or legislative membership. In order to design a constitutionally valid commission, it is important to have a clear understanding of whether all non-judicial members are the same from a constitutional perspective, or whether there are different considerations at play based on the type of non-judicial member in question.
This section argues that lay-membership could result in unique constitutional issues, but that these issues would likely arise from the selection process of members rather than purely by virtue of their ‘lay’ character. It is not the fact that someone is a lay-person that could enliven constitutional issues, but the way in which the commission’s legislative scheme tries to realise the perceived value of the inclusion of lay-people. I argue that if lay-membership is viewed as valuable from a purely democratic perspective, a commission could run into constitutional trouble. Instead, the design of a selection process should be based on the role that lay-people would play in creating public confidence in the commission’s work.
One way to conceptualise the value of lay-membership is that it furthers democratic ideals. On this view, a commission that includes lay-members should be designed to give effect to this democratic benefit. Consider a situation in which lay-members were selected by random ballot. This type of model, in which a randomly selected group of citizens make decisions, is known as ‘sortition’. Sortition originated in ancient Athens, and was based on the democratic ideal of equality between all citizens. We see that random selection in a commission would privilege the commissioners' ‘lay’ character, while de-emphasising any requirement for qualification. This is a highly democratic approach to constructing a commission – it attempts to give centre stage to citizens’ opinions regarding judicial conduct, and to give effect to their wishes. Hence, we see how the way in which the value of lay-membership is conceptualised might affect the design of the commission’s selection process.
These design choices can in turn give rise to constitutional issues. As discussed above, there are several different goals which the constitutional separation of powers might be argued to pursue. However, democratic accountability for judges is not generally seen as one of those goals. As Stephen Gageler observed (prior to his Honour’s appointment to the High Court), the separation of powers in fact insulates federal judges from the political process to preserve their integrity and impartiality. Ch III recognises that the judiciary requires protection from the fickle, rapidly changing nature of public opinion. So, exposing judges to a more ‘democratic’ commission – one designed to make them accountable to the concerns of the electorate – could be inconsistent with the separation of powers as enshrined in the Constitution. This example demonstrates the central argument of this section – that lay-membership could lead to constitutional invalidity not simply by the fact of its existence, but rather the way in which it is given effect in the legislative scheme.
To avoid this constitutional objection, a commission that includes lay-people would need to conceptualise the value of lay-membership in a different way. As I have argued above, the primary value of including lay-people in a commission lies in their perceived impartiality and independence from government, rather than any democratic legitimacy their inclusion fosters. On this approach, the primary purpose of lay-membership is not to increase the democratic nature of the commission; this may well be a welcome incidental benefit, but a judicial commission is not a democratic body. Adopting this view allows for a selection process that is less democratic, but better suited to the work of a judicial commission – for example, appointing lay-people who fulfil certain criteria such as high standing within the community (as is the case in NSW).
Potential selection criteria are not spelled out exhaustively in this post, but would focus on ensuring that lay-members are qualified to make valuable contributions to the commission’s work. Such requirements could include expertise in human resources management, professional ethics, or organisational governance. These selection criteria would not be based on the sort of democratic accountability that might conflict with the separation of powers. Instead, they would focus on ensuring that the commission reaches informed and principled decisions on complex matters of judicial conduct. The commission would therefore be less vulnerable to the problems discussed above. But this is only one possible objection; would such a commission – one composed of qualified lay-people, that does not expose judges to democratic accountability – be constitutional? The remainder of this post will suggest two possible reasons to answer this question in the affirmative.
Firstly, the current state of ch III jurisprudence affords Parliament significant scope to legislate before the separation of judicial power is held to be impaired. For example, Parliament’s effectively giving private arbitral awards the force of a court order was upheld in TCL Air Conditioner (Zhongshan) Co Ltd v The Judges of the Federal Court of Australia, as was Parliament’s ability to create secret evidence regimes in cases like Gypsy Jokers Motorcycle Club Incorporated v Commissioner of Police, SDCV v Director-General of Security and R v Collaery (No 11). While not directly relevant to the matter of a federal judicial commission, such cases nevertheless suggest a relatively high bar for institutional integrity-based constitutional challenges.
Secondly, in Grollo v Palmer and Kable v Director of Public Prosecutions (NSW), it was held that certain functions conferred on judges would impermissibly undermine the integrity of the courts as appropriate repositories of federal judicial power. In these cases, and the subsequent line of jurisprudence, maintaining public confidence in the judiciary is conceived of as intimately connected with the courts’ institutional integrity. In other words, upholding public confidence is an important factor in safeguarding the integrity of the courts. With this in mind, we can return to the first part of this post, which argued that that lay-person membership of a judicial commission would in fact be more effective at preserving public confidence in the judiciary than would be appointing public servants or other perceived ‘government insiders’ to the commission. Appointing qualified lay-people both promotes this confidence-enhancing function and minimises the potentially problematic inclusion of democratic accountability. In other words, imposing qualification requirements preserves the benefits of lay-membership while countering the unique constitutional difficulty it might enliven.
So, to return to the initial question this part posed, it appears that a commission with lay-members is constitutionally different to a commission without such members. The precise nature of this difference, I have argued, depends on how the value of including lay-people is conceptualised. By considering how these conceptions might manifest into different institutional design choices, we can see how lay-membership could interact either harmoniously or dissonantly with the constitutional separation of powers. However, if the normative argument for lay-membership of the commission that I have advanced – enhancing public confidence – is correct, then two implications follow. Firstly, the commission’s selection process would not require the democratic flavour that might fall foul of the constitutional separation of powers. Secondly, a commission that includes suitably qualified lay-people may in fact be less likely to interfere with the courts’ integrity than a commission that does not. Instead, it could play a critical role in shoring up public faith in the justice system. On this basis, it seems that a commission so composed could survive constitutional scrutiny.
Conclusion
While a constitutional challenge to a federal judicial commission is perhaps inevitable, and no one can predict how the High Court would ultimately decide, the abstract possibility of litigation is not a good reason to mothball the proposal, nor to take the ‘safe way out’ by appointing only judges to the commission. A commission designed to increase public confidence in the courts should include qualified members of the public in that process. Just as the debate around the First Nations Voice has shown us, any bold reform to Australia’s political institutions carries the risk of litigation. So long as that risk is not impermissibly great – and here, it is not – risk aversion should not stand in the way of progress.
Henry Palmerlee is a Tuckwell Scholar at the Australian National University, completing a Bachelor of Laws (Hons) specialising in Public Law.
Suggested citation: Henry Palmerlee, ‘Caesar judging Caesar: lay-person membership of a federal judicial commission’ (18 September 2023) <https://www.auspublaw.org/blog/2023/9/caesar-judging-caesar-lay-person-membership-of-a-federal-judicial-commission>