THE JUDICIAL GROUP ON STRENGTHENING JUDICIAL INTEGRITY SECOND MEETING, BANGALORE, INDIA 24-26 FEBRUARY 2001 DISCIPLINE OF JUDICIAL OFFICERS IN AUSTRALIA Michael Kirby*

 

HISTORICAL BACKGROUND

 

Australia has a relatively short political history. Although Aboriginals and other indigenous people lived on the Australian mainland for more than forty thousand years before the arrival of British settlers, the history of the modern state dates from 26January 1788. On that day, Governor Arthur Phillip established a penal settlement in Sydney. Eventually, British dominion was extended to the entire Australian continent. With that dominion, and the settlers, came the common law of England and judicial arrangements for the colonies modelled on those of Great Britain.

 

In colonial times, in Australia as elsewhere in the British Empire, a strong judicial tradition was established. Nonetheless, there were occasional problems of judicial misconduct1:

 

The first judge to arrive in New South Wales (Geoffrey Bent) closed the new Supreme Court for a number of years, boycotting its proceedings because of a vendetta in which he was engaged with the Governor;

 

The first judge of the Supreme Court of South Australia, (John Jeffcott), was removed from office after he killed a fellow Irishman in a duel;

 

The first judge to be sent to Melbourne, (John Walpole Willis) was "amoved" from judicial office twice. The first time was in Canada, although he was later reinstated by the Privy Council. In 1842 he was dismissed for the second time from his post in Melbourne because of "foibles, idiosyncrasies and cantankerousness on the Bench and elsewhere";

 

A judge in Tasmania, (Algernon Montagu), pursued by a creditor in his own court, wrongly claimed immunity from suit. The creditor complained to the Lieutenant-Governor and within weeks Montagu was removed from office;

 

The Victorian judge who presided at the trial of the bush-ranger, Ned Kelly, Sir Redmond Barry, in 1864 took a short vacation without formal leave. A memorandum was sent to the Colonial Office proposing his removal. Although he was not amoved, there was no effective protection of Parliament in those days to prevent this happening; and

 

In the 1860s a crisis in South Australia came to a head over Mr Justice Benjamin Boothby. He refused to give effect to colonial legislation which he considered contrary to the common law of England. Ultimately, he too was removed from office. The debate over his assertions led, in part, to the Colonial Laws Validity Act 1865 (Imp) making clear the primacy of local legislation.

 

THE FEDERAL CONSTITUTION

 

It was against this background of colonial amovals of judges, and the danger to judicial independence which too ready discipline of judges might bring, that the provisions of the Australian federal Constitution must be understood. That Constitution was adopted by the electors of the colonies and submitted to the Imperial authorities in the late 1890s. It was enacted by the Imperial Parliament in 1900. It came into force on 1January 1901. It is one of the six oldest continuously operating constitutions in the world. Very few of its provisions have been amended.

 

By this Constitution, a federal system of governance was established. Provision was made in ChIII for the Judicature. That chapter of the Constitution contemplated the establishment of a "Federal Supreme Court, to be called the High Court of Australia". It also contemplated the creation of other federal courts; the continuation of the Supreme Courts of the colonies as Supreme Courts of the States of Australia; the existence of other State courts; and the facility for State courts to exercise federal jurisdiction. At the time of Australian federation, and until 1986, there were provisions (except in certain constitutional matters) for appeals to the Privy Council. Such appeals have now been wholly terminated2.

 

There are no detailed provisions in the Australian Constitution for the discipline of judges. The subject is dealt with indirectly by s72 which states:

 

"The Justices of the High Court and of other courts created by the Parliament-

 

(i) shall be appointed by the Governor-General in Council;

 

(ii) shall not be removed except by the Governor-General in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity;

 

(iii) shall receive such remuneration as the Parliament may fix; but the remuneration shall not be diminished during their continuance in office".

 

Originally Justices of the High Court and of other federal courts enjoyed life tenure. However, as a result of a constitutional amendment, approved by referendum of the electors in 1977, a maximum age of service of 70 years is now fixed for federal judges. In a hundred years, no federal judge has been removed from office in Australia.

 

PROVISIONS OF CRIMINAL AND CIVIL LAW

 

It is impossible to describe the arrangements for the discipline of judges in Australia globally, although there are not many differences of substance between the various federal, State and Territory jurisdictions. Each jurisdiction has its own judiciary and its own laws against corruption of, or misbehaviour by, judicial officers. It is sufficient to concentrate first on the arrangements affecting the federal judiciary.

 

The Crimes Act 1914 (Cth), a federal statute, provides for certain criminal offences relating to federal judicial office-holders and in respect of federal concerns. Most relevantly, these offences appear in PartIII of the Act: "Offences Relating to the Administration of Justice". By s 31 of the Act a "holder of judicial office" is defined to mean "the holder of a judicial office under the Commonwealth, or the holder of a judicial office acting in the exercise of federal jurisdiction, and includes an arbitrator or umpire under any law of the Commonwealth or of a Territory". Because, pursuant to the Constitution, s77(iii), State courts may be invested with federal jurisdiction by federal law, the foregoing definition will, for certain purposes, extend to include State judicial officers when exercising federal jurisdiction.

 

The following provisions of the Act are specially relevant:

 

"s 32 Judicial corruption

 

Any person who:

 

(a) being the holder of a judicial office, corruptly asks, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit of any kind for himself, or any other person, on account of anything already done or omitted to be done or to be afterwards done or omitted to be done by him in his judicial capacity; or

 

(b) corruptly gives, confers, or procures, or promises or offers to give, confer, procure, or attempt to procure, to, upon, or for, any person holding a judicial office, any property or benefit of any kind on account of any such act or omission on the part of the person holding the judicial office;

 

shall be guilty of an indictable offence.

 

Penalty: Imprisonment for 10 years.

 

s 33 Official corruption in relation to offences

 

Any person who:

 

(a) being a judge or magistrate not acting judicially, or being a Commonwealth officer employed in a capacity not judicial for the prosecution or detention or punishment of offenders, corruptly asks, receives, or obtains, or agrees or attempts to receive or obtain, any property or benefit of any kind for himself or any other person, on account of anything already done or omitted to be done, or to be afterwards done or omitted to be done, by him, with a view to corrupt or improper interference with the due administration of justice under the law of the Commonwealth or of a Territory, or the procurement or facilitation of the commission of any offence against the law of the Commonwealth or of a Territory, or the protection of an offender or intending offender against the law of the Commonwealth or of a Territory from detection or punishment; or

 

(b) corruptly gives, confers, or procures, or promises or offers to give, convert, procure, or attempt to procure to, upon, or for, any such judge, magistrate, or Commonwealth officer, any property or benefit of any kind, on account of any such act or omission on the part of the judge, magistrate, or officer;

 

shall be guilty of an indictable offence.

 

Penalty: Imprisonment for 10 years.

 

s 34 Judge or magistrate acting oppressively or when interested

 

Any person who:

 

(a) being a judge or magistrate and being required or authorised by law to admit any person accused of an offence against the law of the Commonwealth to bail, without reasonable excuse, and in abuse of his office, requires excessive and unreasonable bail; or

 

(b) being a judge or magistrate, wilfully and perversely exercises federal jurisdiction in any matter in which he has a personal interest;

 

shall be guilty of an offence.

 

Penalty: Imprisonment for 2 years".

 

In addition to these provisions, federal judicial officers are, like other citizens, answerable to the ordinary criminal and civil law, including that applicable in the State or Territory in which an offence occurs. They are also subject to laws particularly applicable to public decision-makers. These laws include the law relating to actual or imputed bias. Until recently, it had been assumed in Australia that this was simply part of the common law relating to the observance of rules of natural justice. More recently, however, it has been suggested that the judicial obligation to be free of actual or imputed bias is an implication from the Australian Constitution itself3.

 

There is no standing arrangement in Australia for the receipt, investigation and determination of complaints of corrupt or like conduct on the part of federal judicial officers. In the case of such office-holders, those disaffected may, and often do, write letters of complaint to the Federal Attorney-General, members of Parliament, chief judges and chief magistrates, the media, non-governmental organisations and the police. But there is no central repository or system for handling such complaints. Until now, this has been considered unnecessary. Until recently, the federal judiciary was comprised of relatively few judicial officers.

 

Prosecution of a federal judge

 

The uncertainty of how "proved misbehaviour or incapacity" within the Australian Constitution might be established was unexplored until 1984. In that year, allegations were made that Justice Murphy, a Justice of the High Court of Australia, had attempted to pervert the course of justice in a State court in relation to proceedings brought there against an acquaintance. The judge was in some ways controversial and had had an eventful political career. After the issue was raised in the Federal and State Parliaments, a Committee of the Australian Senate was established to investigate allegations which had been published in the media. The first such Committee cleared the judge of the allegations published at that time4. However, new allegations were then made upon which the reconvened Committee could not agree. A second Senate Committee was established to consider these. It was assisted by two retired judges. Four of the six participants on the second Committee found that Justice Murphy could not be found guilty of any criminal offence. However, five of the six found that it was open to the Parliament to reach a conclusion that he was guilty of "misbehaviour" in the constitutional sense5. It was as a result of this second decision that the Federal Director of Public Prosecutions recommended that Justice Murphy be prosecuted on criminal charges for attempting to pervert the course of justice. The Director did this avowedly to "clear the air". This action has itself been the subject of criticism.

 

In July 1985 a jury in the Supreme Court of New South Wales at Justice Murphy's first trial convicted him of one charge and acquitted him of another. Subsequently, the New South Wales Court of Criminal Appeal set aside that conviction. It ordered a new trial6. The second trial took place in April 1986. On this trial, Justice Murphy was acquitted of the outstanding charge.

 

Later, a new ad hoc Parliamentary Commission of Inquiry was established by special legislation to investigate still further allegations that had been made against Justice Murphy, numbering forty-two in all. The Commission comprised three retired judges. In July 1986, the Commission determined that twenty-eight of the new allegations against Justice Murphy were wholly lacking in substance. It decided to consider the remaining fourteen7. At that stage it was announced that Justice Murphy was dying of incurable cancer. He resolved to return to the High Court, from duties in which he had absented himself during the deliberations of the Commission. The Commission halted its work. Its constituent statute was repealed. Access to the documents of the Commission was embargoed for thirty years8. Justice Murphy performed duties in the High Court for one week of sitting. He died in October 1986.

 

How the Commission would have dealt with the remaining fourteen allegations against the judge will never be known. The defects in the procedures disclosed by the Murphy saga have been widely debated in Australia. Some commentators have suggested that they indicate the need for a more regular, institutional procedure to assist the Federal Parliament to deal with serious allegations of constitutional "misbehaviour" on the part of judges where they are made. Others, fearful of the politicisation of such cases, have suggested that they are so rare that provision of any such institution would simply encourage false and malicious claims.

 

A CODE OF JUDICIAL CONDUCT AND OTHER PROPOSALS

 

The Australian Institute of Judicial Administration is a federally organised non-governmental organisation. It comprises judges, lawyers and judicial administrators throughout Australia. The Institute has, for some time, had under its consideration the preparation of a Judicial Code of Conduct, as a voluntary measure. It has commissioned the preparation of a discussion paper on the subject. No proposal has yet been published. Whether such a code should be adopted is itself a matter of controversy. The question has been considered by the Council of Australian Chief Justices and the Judicial Conference of Australia, both informal non-statutory bodies. So far, no agreed or proposed code of judicial conduct has emerged. The matter remains under consideration.

 

In September 1999, the Australian Law Reform Commission (ALRC), in a discussion paper, proposed that an independent judicial commission, modelled on the Judicial Commission of New South Wales, be established to improve the facilities for education and for the accountability of the federal judiciary. It would be specifically authorised to receive and investigate complaints against federal judges and magistrates. The commission would report to the Governor-General. One model proposed for the commission was that it should be a special division of a proposed national institute for judicial education. It was suggested that the body should have a range of options available to it, including the power to make recommendations to deal with poor performance falling short of warranting removal.9

 

In January 2000, in its final report on the subject, the ALRC modified these proposals after considering public and professional submissions about them. It was obviously greatly influenced by constitutional concerns which, in the Australian federal context, were said to create obstacles to legislation of the kind proposed or to the creation of executive government bodies empowered to intrude impermissibly upon the constitutional guarantees of independence of the judiciary. In the end, the ALRC noted the informal complaints mechanisms that had already been created by the federal courts for the handling of complaints susceptible to informal treatment. It recommended that such protocols should be developed, published and the results reported annually to the Parliament. The proposed Australian Judicial College and Council on Tribunals were urged to develop their training programmes in the light of experience coming to light in the handling of complaints. Another recommendation urged the Federal Parliament to develop and adopt a protocol to govern the receipt and investigation of serious complaints against federal judges and magistrates.10

 

Some judges in Australia support the concepts of improved complaints mechanisms and the adoption of a code of judicial conduct. They point to the fact that such mechanisms and codes exist in countries with similar legal traditions, including the United States and Canada. Other judges regard such changes as unnecessary. They point to the existence of constitutional implications, common law principles, criminal offences and fairly well understood conventions that bind Australian judges11. They fear that the creation of new institutions and a formal code of conduct would encourage and facilitate complaints against judges by persons politically motivated or by disgruntled litigants. They point out that it is the nature of judicial service that judges and magistrates are daily exposed to the peril of complaint by persons disappointed in litigation. They suggest that there is no established need for institutions or a code in the Australian context. There, for the moment, the debate rests.

 

STATE JURISDICTIONS AND REMOVAL

 

It is beyond the scope of this narrow paper to describe the State and Territory laws on discipline of judges in Australia. The position varies amongst the jurisdictions. A starting point, however, is the appreciation of the peculiar status of State courts. They are mentioned in the Federal Constitution. Because State courts may be invested with federal jurisdiction, it has been held that they must be assured of an appropriate measure of independence os as to be "worthy receptacles" of federal jurisdiction12. This recently stated constitutional principle has given an assurance of a measure of constitutional independence to State judicial officers, to reinforce the provisions of State Constitutions and to strengthen these against legislative encroachment.

 

In one State, New South Wales, the State Constitution Act was recently amended to entrench the independence and protection from removal of all judicial officers of that State, including magistrates, and to control their effective removal from office by the abolition of their offices, a technique that had been used outside the federal judiciary in Australia13. This amended provision can itself only be removed from the State Constitution with the approval of the electors at referendum14.

 

Only one State superior court judge in Australia was removed from office during the twentieth century. That was Justice Angelo Vasta, a judge of the Supreme Court of Queensland. He was removed under the State constitutional provision similar to that of the Federal Constitution. Similar provisions appear in substantially common form throughout Australia. Justice Vasta's removal followed a vote of the Queensland Parliament. That vote followed, in turn, the receipt of a report of a Commission of Inquiry into allegations made against the judge. The allegations concerned his alleged "misbehaviour". The allegations came to notice after the diaries of a police commissioner were disclosed in another public inquiry. Allegations were made of wrongdoing by the judge, including in relation to a company with which the judge's family were associated. No actual misconduct in relation to the judge's decisions was established. Almost all of the allegations of "misconduct" were rejected. Nevertheless, the Commission of Inquiry (which was chaired by a former Chief Justice of Australia) found that an item of the conduct alleged constituted "misconduct". The State Parliament voted in favour of his removal from office and he was removed.

 

There were several criticisms of the procedures followed in the Vasta inquiry. These concerned the delineation of the respective roles of the Commission of Inquiry and of the Queensland Parliament and the initial failure of the Government of Queensland to pay the legal costs of Justice Vasta which he necessarily incurred in defending himself and his office. Once again, the absence of a settled procedure and of an established institution was brought to attention. In partial response to these perceived defects, and in answer to a recommendation of an earlier inquiry, the Queensland Parliament, in 1989, enacted a limited provision authorising an Official Misconduct Division of the State Criminal Justice Commission, in certain circumstances, to investigate the conduct of a judicial officer against whom allegations had been made.15

 

Only one other Australian State has enacted an institutional response to complaints against judicial officers. In 1985, the New South Wales Parliament enacted the Judicial Officers Act providing for a Judicial Commission with powers that include the receipt and investigation of such complaints16. The Conduct Division of that Commission filters complaints against judicial officers. Some such complaints simply reflect disappointment with the outcome of litigation or criticism of particular behaviour of a judicial officer. On a small number of occasions, more serious complaints have led to referral to the Conduct Division. On rare occasions they had led to the subsequent resignation of the judicial officer concerned.

 

In 1994, the New South Wales Parliament enacted the Judicial Commissions Act of that year. Part IV of this Act provides in detail for the handling of serious complaints against judicial officers. By s14 any person may complain to the Attorney-General "about a matter that relates or may relate to the behaviour or physical or mental capacity of a judicial officer". The Attorney-General is authorised, in his discretion, to appoint a Commission to investigate the complaint. The Attorney-General may decline to take action if it is considered that the complaint has been made "vexatiously, frivolously or without reasonable grounds" or would not "even if proved, amount to misbehaviour or incapacity warranting removal"17.

 

In only one case has a complaint against a judicial officer in New South Wales proceed through these legislative mechanisms to a contested hearing on the floor of the State Parliament. Complaints of serious delays in the rendering of decisions on the part of Justice Bruce, a judge of the Supreme Court of New South Wales, were considered by Parliament. A public sitting of the Legislative Council of New South Wales heard evidence and a statement by the judge himself. Having heard the judge describe a condition of mental depression which had affected his performance, the Legislative Council, by majority, rejected the motion praying for his removal. Justice Bruce returned to judicial duties. Subsequently, he resigned from office.

 

Consideration of whether the statutory model in New South Wales should be extended to other States and Territories of Australia, and into federal jurisdiction, has been revived from time to time in judicial circles and the media. The ensuing debate has reflected the foregoing controversies. Those who oppose change suggest that it is unnecessary and might be counter-productive to judicial independence. Those who support it suggest that an institutional mechanism is essential to promote transparency and to avoid perceived problems that emerged in the Murphy, Vasta and Bruce cases.

 

THE FUTURE

 

It seems likely to me that institutions will, in due course, be developed in Australia, in all jurisdictions, to receive, filter and provide for the consideration and determination of complaints against judicial officers. It also seems likely that a code of judicial conduct, drawn up initially by judges themselves, will eventually be adopted. It seems likely that the Australian Institute of Judicial Administration, the Council of Chief Justices and the Australian Judicial Conference, will continue their deliberations on these topics. In due course improved and more transparent institutions and rules will be adopted.18

 

It would be desirable that an effective filtering mechanism would be included in any such bodies to exclude irrational, malicious and misconceived complaints against judicial officers. These are not uncommon. They sometimes arise, because of the nature of judicial work. Financial corruption has not, until now, been an issue in the Australian judiciary.

 

So far as Australia is concerned, the best model for action would seem to be that provided by Canada. There the Canadian Judicial Council operates federally. There are also provincial councils with mixed educative and complaints obligations. The law in respect of complaints against judicial officers must respond to the needs of each society. Those needs will include common considerations (such as complaints about rudeness, lateness, incompetence, dilatoriness in giving decisions and inappropriate professional and social conduct). But they will also include abuse of office and financial corruption.

 

The basic problem of the present arrangements in Australia is that, outside the State jurisdictions of New South Wales and Queensland, virtually the only institutional mechanism available for dealing with contested complaints against judicial officers are the sledge-hammers of criminal prosecution or constitutional removal by parliamentary procedure. This is not wholly true of magistrates and District Court judges. However, except for informal court protocols, it is substantially true of superior court judges. Within any constitutional constraints that may exist, a more modern complaints mechanism would seem to be desirable. Otherwise, complaints may tend to fester for want of effective and transparent determination. The ALRC proposals are a step in the right direction. But more may be needed. In particular, with the rapid expansion of the Australian judiciary in recent years, there would seem to be a need for a publicly available code of conduct containing the basic rules binding on the holders of judicial office. If such codes apply to the judiciary in Canada, the United States and many other countries, their utility would appear to be established. The real debate would seem to be about their content.

 

Any new institutions and rules in Australia would have to be introduced after thorough consultation with the judges themselves, with the legal profession and the interested public. They should avoid adding to judicial burdens the peril of further harassment by disgruntled litigants and by irrational people and groups, sometimes with political or personal axes to grind. The basic challenge before the International Judicial Group, seeking to devise international guidelines on this topic, is to devise institutions and rules that are appropriate and helpful in each jurisdiction, respectful of their significantly differing needs and traditions, and capable of avoiding the dangers about which judicial officers in every country have legitimate concerns.

 

 

The world has changed since the colonial judiciary of the British Empire was established in Commonwealth countries. The law and its institutions have changed greatly. Today, transparency and accountability are required of the performance in office of all public officer-holders. The judiciary is not exempt. It is already subject, in every land, to many laws and procedures that uphold such basic values. But a judge holds a special office. He or she is doomed every day to disappoint and upset the losing side - sometimes rich, powerful and opinionated people. In the handling of complaints against judges, most of whom are extremely dutiful, hard-working and scrupulously honest, the mechanisms devised have to take into account the need to uphold finality of decision-making and to defend the independence from outside pressure of those who have the difficult duty to judge their fellow citizens.

 

* Justice of the High Court of Australia.

 

1 M D Kirby, The Judges (ABC Boyer Lectures, 1983), pp 45-47.

 

2 The appeals to the Privy Council were abolished by Privy Council (Limitation of Appeals) Act 1968 (Cth); Privy Council (Appeals from the High Court) Act 1975 (Cth) and Australia Acts 1986 (Cth).

 

3 Ebner v Official Trustee in Bankruptcy (2001) 176 ALR 644 at 661-662, 669-671; [79]-[82], [116].

 

4 Australia, Senate Select Committee on the Conduct of a Judge (1984) (reported 24 August 1984).

 

5 Australia, Senate Select Committee on the Conduct of a Judge (1984) (reported 31 October 1984).

 

6 R v Murphy (1985) 4 NSWLR 42. See also R v Murphy (1985) 158 CLR 596; R v Murphy (1986) 5 NSWLR 18.

 

7 A R Blackshield, "The Appointment and Removal of Federal Judges" in B Opeskin and F Wheeler, The Australian Federal Judicial System, (Melbourne University Press, 2000) 400 at 413.

 

8 Parliamentary Commission of Inquiry (Repeal) Act 1986 (Cth), s6.

 

9 Australian Law Reform Commission, Review of the Federal Civil Justice System (Disc Paper 62, 1999).

 

10 Australian Law Reform Commission, Managing Justice - A Review of the Federal Civil Justice System (ALRC 89, 2000) 195-202.

 

11 See, eg, J B Thomas, Judicial Ethics in Australia, (Law Book Company, 2nd ed, 1997).

 

12 Kable v Director of Public Prosecutions (NSW) (1997) 189 CLR 51.

 

13 cf Attorney-General (NSW) v Quin (1990) 170 CLR 1.

 

14 Constitution Act 1902 (NSW), ss53 and 56, inserted by Amending Act 1992 No 106 Sch 1(4).

 

15 Criminal Justice Act 1989 (Qld), s29(4). See also ss28 and 32.

 

16 Judicial Officers Act 1985 (NSW), s 14. See also Pt 6 of the Act ("Complaints against Judicial Officers").

 

17 s17(1).

 

18 In February 2001 a working party of the Victorian judiciary chaired by the State Chief Justice (the Hon. J. H. Phillips) proposed the establishment of a judicial training college - a proposal welcomed by the State Attorney-General. The establishment of a federal college, as recommended by the ALRC is under consideration. See The Age (Melbourne) 19 February 2001, p1.