“They rarely serve those who bring complaints to them. They serve those about whom complaints are made.” Welcome to judicial commission world. “CityNews” legal affairs writer HUGH SELBY explains why we need a national one and what they should be, “if those setting them up had the guts to get it right,” he says. 

SOME states and the ACT have set up judicial commissions. Their purposes include responding to claims of poor judicial conduct. Parties, witnesses, lawyers, court staff can bring complaints to such bodies.

Commissions can have other important roles, such as judicial education and providing invaluable guides to judges and lawyers on how cases should be conducted, as well as sentencing. See, for example, here and here.

The media pays them scant attention. That’s a pity because without some focused attention they will continue to be judicial protection agencies. That’s right: they rarely serve those who bring complaints to them. They serve those about whom complaints are made.

You ask: “What might be complained about?” 

Because to err is human and judges are human there are instances of: bullying, harassment, racial abuse, humiliating a person in the courtroom, abuse of power when dealing with lawyers and others in court, loss of temper, repeated delay in delivering decisions, being intoxicated in court, frequently being late to court, sleeping when in court, having junior staff draft judgments and not checking their work properly, having a junior staff draft a judgment when that staff member is a friend of one of the parties, consciously omitting material facts or issues from a judgment so as to disguise the falsity of the decision, and, wilfully including irrelevant but damaging material in a criminal acquittal judgment knowing that the acquitted person has no redress. 

I discussed the ACT Judicial Commission and some necessary improvements to it in “CityNews” earlier this year under the heading “When the judge trashes an innocent reputation”. 

Given the numbers of people who hear and make decisions as members of busy tribunals (such as the ACAT, NCAT, QCAT, VCAT – respectively in the ACT, NSW, Queensland, and Victoria) it would be sensible to make their conduct too amenable to the same complaints procedures as judicial officers. That is the case in Victoria but it hasn’t happened in the ACT or NSW.

The Commonwealth has many judicial appointments: the High Court, the Federal Court, the Family and the Federal Circuit Courts. It also has Tribunals such as the Remuneration Tribunal, Native Title, the Fair Work Commission, and the Administrative Review Tribunal which this year replaced the AAT to which inappropriate “jobs for the boys and girls” appointments were made by a previous government. 

In 2022, Commonwealth Attorney General Mark Dreyfus noted the need for a “transparent and independent means to address concerns about the conduct of judges”. In January, he issued a short, disappointing discussion paper about setting up a federal judicial commission

It’s here. 

The disappointment flows from its lack of any attempt to learn from the ineffectiveness of the existing commissions with respect to complaints, its failure to recognise that tribunal members are as much in need of accountability as judicial appointments, and the missed opportunity to tackle a national issue with a national solution.

Why we should have a national approach

The approach so far to judicial commissions has been parochial. But why should the conduct of a judge in Tasmania, for example, be treated differently to that of a magistrate in northern Queensland? They are both Australians. Any person in a court or tribunal in Australia is entitled to the same high standards of service delivery and to a consistent, national approach to responding to complaints.

We have solved the problem of “the tyranny of distance” with the quality of audiovisual technology. We conduct hearings with the decision maker in one place and the parties and their lawyers in other places. We can do the same for responding to complaints.

The heart of the present problem is that judicial officers and tribunal members do not want to be called out for bad behaviour and that the present system has shown itself to be very effective in keeping things nice and quiet.

The exception proves the rule: the investigation called by the chief justice of the High Court into former Justice Heydon’s conduct. Note that this was a court initiative. That received so much attention, in contrast to the lack of any attention to those magistrates, judges and tribunal members who, for example, are known to those who appear before them, for their repeated misuse of their powers year after year.

One might ask: “How do these judicial officers get away with it?” 

It’s simple. The approach to complaints is to treat each one as unique, to limit any inquiry, to avoid looking for patterns of conduct. Some might call it “blinkered”. Such an approach leads to this result: “Your complaint could not be substantiated”. 

The reasonable desire to maintain public confidence in our judiciary co-exists with a mix of the errant notions that “they do no wrong (after all, they are our colleagues and being like us they are worthy of respect)”, that “transgressions are so rare that nothing is to be gained by bringing them to light”, that “complainants are just losers”.

If instead we start with the notion that judges (and tribunal members) are no less fallible than the rest of us then the following assumptions are reasonable, appropriate, and could be implemented:

The making and recording of a complaint 

• The website of each jurisdiction (court and tribunal) must clearly set out how complaints are to be made;

• A complaint may be made about present or past judicial/tribunal officers to a national Commission; and.

• Poor conduct may be a “one off” or it may be repeated. We can only find out by making it easy to lodge complaints in a timely manner and then recording the data with an easy to search, easy to find patterns, system.

Responding to a complaint

• Complaints should not be investigated by the work colleagues of those complained about, nor by those who are beholden to those complained about;

• The commission should have powers to compel the production of records and to answer questions (including those to which the answer may support the complainant’s complaint);

• All investigative sessions will be in private; legal representation for any person called is permitted; the rules of evidence will not apply;

• The standard of proof should be the Briginshaw approach; that is, civil “balance of a probabilities” with a twist;

• Evidence of a past tendency to act in a particular manner, or an apparent lack of coincidence in conduct, may be used; and,

• Since Heads of jurisdiction may have to implement recommendations/penalties, they should not be part of the investigative or evaluation process.

Composition of the commission and investigative teams

• While we have courts/tribunals at both State and Federal levels there is no reason to have disparate approaches to matters of conduct and ethics. We are one Australia and our expectations of our judiciary/tribunal members should reflect a national, not a parochial, approach;

• The composition of the National Judicial Commission should be a management committee representing the judiciary/tribunal members of each member state/territory plus the Commonwealth;

• The investigation of any complaint should be by staff with no connection to the jurisdiction or the officer complained about; and,

• The evaluation and any recommendations for action that flow from an investigation should be determined by a panel of three, only one of whom shall be from the jurisdiction of the investigated; and, one must be a non-lawyer.

Other commission tasks

First, from time to time a party to a case will ask the judge/magistrate/tribunal member to withdraw from the case because of a belief that the decision maker will be influenced by some past or present association or action. 

These “recusal” applications, based on an “apprehension of bias by the decision maker”, are now decided by the person against whom the “recusal” request is made.

Such requests are an example of a conflict of interest. Save for judges, we don’t leave it to those suspected of a conflict of interest to decide the question – for good reason: if they have so far failed to declare or recognise that conflict, then they are hardly likely to do so when called out.

A national judicial commission is a much better way to resolve such questions. Because the test is the reasonable, non-lawyer observer’s point of view, such applications should be decided by an adhoc panel of three lay persons (drawn from a panel of suitable lay members available at short notice), hearing the claim by audio-visual link. The “contrary viewpoint” can be put to the adhoc panel by a “contradictor” – that being a former judicial or tribunal officer.

Second, there can be errors of fact or law in a judgment that cannot (for various reasons) be appealed, but which should be corrected. There is no mechanism to do so.

For example, in a judge-alone criminal trial, where the accused has been acquitted, she or he has no remedy if the judge makes remarks about the event, the complainant, the accused, or a witness that are irrelevant to their decision, but cause long-term damage to that person.

The published decision needs to be “cleaned up”. This can and should be done by a judicial commission who should also have the head of jurisdiction remind the judge (who overstepped their powers) on the essentials of decision writing.

‘You’re dreaming…’

Once upon a time some occupations were accorded respect which gave them protection from criticism.

These days we are less reticent about expecting accountability.

Since judges and tribunal members are the frontline when it comes to accountability, it follows that their conduct must be exemplary and seen to be so.

Recently a judge (of a national court) was found to have behaved improperly in his treatment of a party before him. The gap between his egregious conduct and his day of reckoning was several years – much too long.

It was not the first time that this judge had been found to have acted inappropriately.

We need a national judicial commission to guide and, if necessary, to weed out those decision makers whose conduct is injudicious.

I have hope, but don’t hold your breath that it will happen.

When the judge trashes an innocent reputation

Hugh Selby is a former barrister. His free podcasts on “Witness Essentials” and “Advocacy in court: preparation and performance” can be heard on the best known podcast sites.