What Does the Lasry Resignation Tell Us About Judicial Complaints Commissions?
26.3.24
And so it ends after 51 years
With these words, broadcast to the world on ‘X’ (aka Twitter) late one Tuesday night, Victorian Supreme Court Justice Lex Lasry cryptically announced the end of his long judicial career.
The following morning, during a pre-trial hearing for a group of bikies accused of murder, he dramatically confirmed the news:
I will not be able to continue with any further hearings in this case and will soon be resigning from this court.
Justice Lex Lasry is a titan of the law in Victoria, with a well-deserved reputation for impeccable integrity, who leaves behind a ‘significant legacy’. But the resignation of Justice Lasry is a sad cautionary tale of the dangers of formal judicial complaints processes. These bodies exist to promote judicial accountability by allowing an easy mechanism of public complaint. But the potential for mechanisms to cause more harm than good cannot be dismissed.
These apprehensions have only grown as news emerged that the Victorian DPP had made a second complaint about a judicial officer concerning a substantive judicial decision. There are concerns this may be part of a ‘troubling trend’ with reports of third complaint being foreshadowed.
These examples should force us to pause and reflect on the purpose and limits of judicial commissions. These bodies are not substitutes for appeal, nor means to express displeasure against findings. Indeed, attempts to use them for this purpose interfere with judicial independence in potentially alarming ways. Given current moves to develop a Federal Judicial Commission, the current events in Victoria should challenge us to look critically at these bodies and on the good and the ill they may work.
The Resignation of Justice Lasry
Justice Lasry was appointed to the Victorian Supreme Court in 2007 following a long and storied career at the criminal bar. He officially retired in 2018 on reaching the mandatory retirement age but continued to serve on the bench as a reserve judge until his dramatic resignation. On that warm summer’s morning, His Honour cut straight to the point:
Ladies and gentlemen, I will not be able to continue with any further hearings in this case and will soon be resigning from this court. Since this matter is part heard before me, you are entitled to know why this is occurring.
Justice Lasry told the courtroom he had received a letter from the JCV concerning a complaint made against him by the DPP which centred on the judge’s decision to stay a criminal prosecution last year. Justice Lasry read out portions of the complaint, which said that the judge’s comments ‘in court and in a published judgment’ – that is, in the core substantive exercise of the judicial function – ‘had the tendency to diminish public confidence in the administration of justice in Victoria and diminish the confidence of litigants and the public in general in His Honour’s impartiality and independence.’
The complaint appears to be centred around a ruling in DPP v Tuteru (No 3) in March 2023, in a case against trucking boss Simiona Tuteru. Tuteru had initially been charged with manslaughter after he allowed a truck driver to drive while on drugs, before he crashed into four police officers in 2020. Those charges were withdrawn days before trial, in favour of heavy vehicle offences. Following an application by the defence, Justice Lasry granted a permanent stay against those charges on the grounds the that the court processes had been used ‘oppressively and unfairly’ and allowing them to proceed would be a ‘glaring and oppressive misuse of the Court process’ [71]. The DPP appealed this decision, and in August 2023, the Victorian Court of Appeal allowed the appeal. That judgment involved some strong language (Justice Lasry was described as using ‘surprisingly robust descriptors’ [74] and some of his reasoning was ‘plainly’ wrong [101]) and indicated a profound disagreement between Justice Lasry and the Court of Appeal as to the exercise of discretion. However, there is no suggestion of impropriety, and seems nothing more than a strong but routine substantive appeal.
I am, of course, not privy to the full circumstances of the complaint and am reliant on the comments made by Justice Lasry. But it appears that the DPP took issue with the language and implications of the primary rulings as to her bona fides and competence – and alleged that these undermined public confidence in the judicial system. In May 2023 (three months prior to the appeal), the DPP filed a complaint to the JCV.
If this timeline and account is correct, it is profoundly troubling. As Justice Lasry noted in his statements, the normal course for any concern about judicial bias or impartiality is to make an application for the judge to recuse themselves from that matter. No such application was made here. The concerns raised in the complaint are glaringly absent from the subsequent appeal, as were the allegations about public confidence, where they could have been properly agitated.
Ultimately, His Honour told the court that he ‘utterly rejects’ the allegations, but felt that it was no longer appropriate for him to preside over matters involving the DPP as a party, and as a member of the Criminal Division of the court felt he had ‘no option but to resign'.
The profession has been quick to rally behind Justice Lasry. In an unusual intervention, Justice Michael Walton, President of the Australian Judicial Officers Association, released a Media Release which described the resignation as occurring under ‘regrettable and extraordinary circumstances’. Former Chief Justice Marilyn Warren made a rare public statement, describing Justice Lasry as ‘an exemplary and trustworthy barrister and judge’. Similarly, former Supreme Court judge and IBAC commissioner Robert Redlich KC said Justice Lasry had made an ‘outstanding contribution to the administration of criminal justice’ served with ‘great distinction’ and ‘is held in the highest esteem by his judicial colleagues and the Victorian Bar’.
But the damage has been done. And it should focus our attention on the on the potential adverse effects formalising complaints processes.
The Emergence of the Judicial Complaints Commission Model
The last decade has seen a rapid expansion of formal judicial complaints processes in several jurisdictions. The first formal judicial complaints handling body, the Judicial Commission of NSW, commenced operation in 1987, with the ACT following suit in 1994. No other bodies were created for over 20 years, until new institutions were created in SA (2016), Victoria (2017) and NT (2021).
The Judicial Commission of Victoria (JCV) is the busiest of all these complaints bodies. It was established in 2017 to investigate complaints about judicial officers and members of VCAT. In the first 5 years of operation, the JCV received 1140 complaints, which was 65% of the total received nationally. This significantly larger workload means that the complaints processes of the JCV requires the largest budget of any formal complaints process in Australia ($2.465m in 2021/22). By contrast the complaints budget of the Judicial Commission of NSW was only $0.4m in 2021/22.
These Commissions do not exist to provide an alternative mechanism to agitate disappointment about a judgment. Each jurisdiction allows the early dismissal of complaints concerning the substantive legal merits of the underlying case, as well as vexatious, unsubstantiated and otherwise misguided complaints. Moreover, the Commissions are extremely limited in the remedies permissible: minor matters may be ‘referred’ to Head of Jurisdiction for some undisclosed informal result, while serious matters are investigated by an Investigation Panels that reports to the Attorney-General.
And here is the rub. Judges aren’t civil servants subject to executive oversight. Security of tenure has been a cornerstone of judicial independence since at least 1701. And judicial independence is a central pillar of our constitutional settlement. Judges can only be removed by an address of both houses of Parliament – and this is extraordinarily rare. Indeed, only a single Supreme Court justice has ever been removed from office in Australia since federation (Justice Vasta in Queensland in 1987). The Commissions are not there to provide a slap on the wrist. They exist to identify and investigate the most serious instances of judicial misconduct.
While some scholars would wish for a more expansive role, the current legislative models are – for good theoretical and constitutional reasons – tightly limited in the conduct that can be investigated and the remedies of investigation. Commissions remain a late and limited addition to the broad suite of mechanisms by which our judges are held to account.
Judicial Misconduct and Questions of Law
This takes us back to the complaint against Justice Lasry. There is of course a degree of speculation involved here, as the complaint has not been made public. Under section 21 of the Act, the JVC must give written notice to the judge if the matter is dismissed, or if there is a referral to an Investigatory Panel. We do not know which is the case here, or if this was an additional form of communication.
On its face the complaint appears to go to a core exercise of judicial power, ie the merits of the primary decision. Section 16(3)(b) of the JCV Act requires the dismissal of any application that relates solely to the merits or lawfulness of a decision. Without prejudging the final determination, it appears that the complaint against Lasry would fall within this provision, as questions of bias are questions of substantive law. Of course, it may at times be an unclear line between ‘bias’ as an error attracting appellate review, and unjudicial conduct attracting review by the JCV. However, this is where the underlying purpose of these complaints processes come in: the only formal sanction these support (but don’t deliver themselves) is the removal on an address of both Houses of Parliament. This is only appropriate in the most serious cases of judicial misconduct. The role and propriety of any lesser ‘sanction’ (including informal counselling by the Head of Jurisdiction) is contested and controversial. Yes, some comments from the bench may amount to ‘proved misbehaviour’ but there was no suggestion that any of Lasry’s comments reached that standard. This appears to be firmly within the core of bias, not the penumbra of potential JCV jurisdiction, and certainly not the extreme of misbehaviour. This was never a complaint that could progress to further investigation, let alone the sanction.
As the ALRC found in its recent Without Fear or Favour Report, the laws on this area – while at times controversial – are adequate and well adapted to their purpose. If the DPP had concerns about the partiality of Justice Lasry, the only appropriate and lawful remedy was to seek redress through the courts for substantive legal review of the decision. On the information available, resort to the JCV was inappropriate and misguided, not least when it was made prior to the appeal and where those issue were not agitated on appeal. Justice Lasry is absolutely correct to note that if there was a concern about bias it should have been made in a recusal application, and not in confidential complaint to the JCV.
Judicial complaints processes do not exist to correct perceived legal error, and it is a misuse of their processes to attempt to use them in this way. It is tempting to think that judges need to be policed for misconduct, and that perhaps we need oversight by bodies like the JCV for conduct that potentially involved both legal errors and misconduct. But this view is misguided. The starting premise is not executive oversight, but judicial independence. And that means that ‘mere’ misconduct is tolerated in the interests of institutional decisional impartiality (of course, there exist a range of other mechanisms of accountability that modify this basic proposition). Any oversight of matters of substantive judicial conduct by an executive judicial commission is arguably unconstitutional.
On one reading, the DPP felt her reputation had been tarnished by the comments. But complaints process do not exist for hurt feelings, and judicial immunity prevents (for good reasons of policy) a disappointed litigant from suing for defamation. Prior to the existence of the JCV, the DPP could either appeal or, perhaps, approach the Chief Justice – which would have been given short shrift.
One reassuring aspect of the case is that it demonstrates the role of the judicial system to correct potential legal error. The initial decision of Justice Lasry to stay the prosecution was overturned on appeal, and the strong language of that judgment is a coded warning to be more circumspect in the future. But at its core, this was a routine difference of judicial opinion as to the appropriate resolution of a judicial discretion. Nothing in this remotely approached the standard of judicial misbehaviour, and to make such allegations now and not before the Court of Appeal is a misuse (if not an abuse) of the complaint process. Questions are mounting about the DPP’s conduct, with the situation now being described as ‘toxic’ and ‘unsustainable.’
There was no need here for Justice Lasry to retire. His integrity remains entirely unblemished. However, at 75 years or age he may very well have decided that he no longer had the energy for this fight.
This incident is a case study in the potential harm that can occur through the abuse of judicial complaint processes. And there is a concerning trend whereby the Victorian DPP is continuing to utilise the JCV process to agitate against substantive decisions. It was reported in late February that a complaint was made against Justice Chettle after he ordered a permanent stay of rape charges against two men, a decision similarly subsequently overturned on appeal. A third complaint has been foreshadowed. There are concerns that a similar approach may be taken in NSW following judicial critique of DPP conduct.
Intentional or not, these actions arguably support a perception that an officer of the executive is using the complaints process to influence judicial decision-making, pressuring judges to avoid issuing such stays or criticising the DPP. It is hard to see this other than as an interference with the independence of the judiciary. The mere existence of the complaints process appears to be creating a new avenue for potential improper and unacceptable influence of judicial decision-making.
The National Data on Judicial Complaints Processes
This concern should be an invitation to reflect on how these bodies are and should be operating. Broadly conceived, the complaints handling aspects of a Judicial Commission should operate to ensure that genuine and substantial concerns about judicial (mis)conduct are efficiently and appropriately investigated and, where necessary, disciplinary actions taken. Moreover, such a system should minimise the investigation of meritless concerns. Such a process can be visualised as achieving the following ideal:
Figure 1: Ideal Impact of Judicial Commission
However, the reality is very far from this ideal. Nationally, Judicial Complaint Commission processes are overwhelmingly swamped by unmeritorious and misguided applications. Over the last 5 years, 97% of all complaints have been dismissed at the earliest possible stage. In its first five years of operation, the Judicial Commission of Victoria received 1140 complaints, 99% of which were dismissed under s 16 of the Act. In that time, only one single matter was wholly or partially substantiated by an Investigation Panel.
The full suite of relevant reported data for each jurisdiction in the last five years is provided below.
Table 1: Cumulative Figures for All Australian Judicial Commissions/Councils/Commissioners
Taken as a whole, the available data provides strong support for the proposition that the primary impact of formal judicial complaints processes has primarily been to investigate meritless concerns. We do not have evidence that the processes have had a positive impact on unaddressed legitimate concerns – that is, whether the very small number of complaints that are made out would have been made, investigated and dealt with in the absence of a formal judicial complaints process via ad hoc complaints. What we do know is that the overwhelming majority of complaints dealt with by the commissions are complaints which would not have been made but for the existence of the mechanism for making complaints. The complaints process is making meritless complaints far more common. Rather than the ideal set out above, the actual impact of the complaints processes of Judicial Commissions is better set out in the figure below:
Figure 2: Actual Impact of Judicial Complaints Commissions
The experience of Judicial Commissions, both domestically and international, overwhelmingly show that the functional operative purpose of such bodies is to provide a mechanism for the receipt of complaints, not to provide for the potential disciplining of judges.
This is not a criticism of the work of the Commissions themselves. They operate under a tightly controlled legislative regime that appears predicated on the idea that only significant and legitimate complaints will be made. There is a notable absence of tools allowing the triaging of effectively meritless complaints.
And as the Justice Lasry affair illustrates, even the act of conducting an investigation – in the absence of such triage – can cause real harm to individuals and the system.
Future Implications
These concerns, and data of existing practices, should offer a vital set of experiences and track record to inform the design of any future Commission, such as a Federal Judicial Commission. Indeed, the experiences of these bodies provides a laser-like focus on some of the difficulties and shortcomings facing any new judicial complaints body. While there are some areas (such as sexual harassment) where formal complaints bodies bring structural benefits, the overwhelming experience of these bodies has been dealing with unwarranted, irrelevant or misguided complaints. Increasingly, disaffected and disappointed litigants (mostly self-represented) are attempting to use complaint processes as a substitution for appeal or review processes: around 50% of all complaints go to merits.
None of this suggests that judicial commissions are inherently flawed, or their use should be resisted. There is broad support for such bodies, and they can develop genuine expertise in assessing substantive complaints. But they are not a panacea all ills of judicial accountability, and can potentially cause real institutional harm. This is potentially what occurred here. The need for more effective triaging mechanisms certainly seems acute given the data.
This is all of particular relevance in light of a proposed new Federal Judicial Commission. Such a body has the potential to operate as critical new institution to maintain and enhance the capacity of the federal judiciary to perform its vital judicial function with excellence, and to protect and strengthen judicial independence, impartiality and judicial integrity. As Rebecca Ananian-Welsh has observed:
…the fundamental aims of the Commission and the Constitution – namely, the achievement and enhancement of judicial independence, impartiality and integrity – are aligned. This fundamental alignment suggests that a robust, effective and constitutionally valid Commission is achievable.
However, if it is to achieve these objectives its design must be carefully calibrated to ensure that its work is not derailed by unfounded and irrelevant allegations, that does is not (and is not seen to) improperly interfere with judicial decision-making, and that it does not divert time and resources from central judicial operations.
And we must not lose sight of the fact that these bodies are a form of executive oversight of the judiciary. If the complaint of the DPP in the Lasry case is as reported, it appears to skirt very close to crossing the line from misuse to abuse of the complaint process. If a member of the executive is using the complaints process to exert pressure on judges not to criticise the complainant in judicial decisions, this is a profoundly troubling interference with judicial independence. And that should call for questions about structural design.
After this article was written, the Judicial Commission of Victoria released a statement that provided further information about the matter. It is available here.
Joe McIntyre is an Associate Professor at the University of South Australia School of Law.
Suggested citation: Joe McIntyre, ‘What does the Lasry resignation tell us about judicial complaints commissions?’ on AUSPUBLAW (26 March 2024) <https://auspublaw.org/blog/2024/3/what-does-the-lasry-resignation-tell-us-about-judicial-complaints-commissions>