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Published online by Cambridge University Press: 28 May 2018
In recent years there has been a trend towards independent and more transparent ethical regulation for sitting judges, which is said to promote public confidence in the judicial institution, and reflect a move towards accountability and transparency as judicial values. However, regimes governing sitting judges largely fall away when the judge retires from the bench. Increasing longevity and rising numbers of former judges raise complex ethical regulation questions. Drawing on judicial ethics regimes in England and Wales, Australia, the United States and New Zealand, and instances where the conduct of former judges has reflected poorly on the integrity of the judiciary, this article argues that there are strong reasons for extending ethics regulation beyond judicial retirement. By reference to the principles that inform the rules regulating the conduct of sitting judges, we investigate the extent to which misconduct and disciplining regimes should extend to former judges, and whether there is a stronger role for soft instruments and more formalized processes for regulating former judges. In doing so, we propose a model for the development of ethical regulation for former judges.
2 See, for instance, International Association of Judicial Independence and World Peace, ‘Mt Scopus International Standards of Judicial Independence 2008’ (2015) <https://www.jiwp.org/mt-scopus-standards>; International Bar Association, ‘The New Delhi Code of Minimum Standards of Judicial independence 1982’ (1982) <https://www.jiwp.org/new-delhi-declaration>; Conférence mondiale sur l'indépendance de la justice, Universal Declaration of The Independence of Justice (1983); United Nations, ‘The Bangalore Principles of Judicial Conduct November 2002’ (2002) <https://www.unodc.org/pdf/crime/corruption/judicial_group/Bangalore_principles.pdf>; United Nations, Basic Principles of Independence of the Judiciary (United Nations 1988); P Sands, C McLachlan and R Mackenzie, ‘The Burgh House Principles on the Independence of the International Judiciary’ (2005) 4(2) Law and Practice of International Courts and Tribunals 247 (for the international judiciary).
3 See, for instance, the Bologna Milano Global Code of Judicial Ethics 2015, approved at the International Conference of Judicial Independence, June 2015: International Association of Judicial Independence and World Peace, ‘Bologna and Milan Global Code of Judicial Ethics’ (2015) <https://www.icj.org/wp-content/uploads/2016/02/Bologna-and-Milan-Global-Code-of-Judicial-Ethics.pdf>.
4 We have not considered Canada in our article for reason of the complexity and diversity in that jurisdiction. The regimes that apply (at least to return to practice) in the Canadian provinces have been the subject of previous scholarship: see further Pitel, SGA and Bortolin, W, ‘Revising Canada's Ethical Rules for Judges Returning to Practice’ (2011) 34 DalhousieLJ 483Google Scholar. This is a subject of increasing interest in Canada: the regulation of retired judges was the subject of a 2016 discussion paper and consultation process conducted by the Federation of Law Societies of Canada: see further Federation of Law Societies of Canada, ‘Model Code of Professional Conduct Consultation Report’ (31 January 2017) <http://flsc.ca/wp-content/uploads/2014/10/Consultation-Report-Draft-Model-Code-Amendments-for-web-Jan2017-FINAL.pdf>.
5 Bologna Milano Global Code (n 3).
6 See G Appleby and S McDonald, ‘Pride and Prejudice: A Case for Reform of Judicial Recusal Procedure’ (2017) 20 Legal Ethics 89.
7 See the proposal of these as accepted judicial values in Devlin and Dodek (n 1).
8 Gallagher v Durack (1983) 152 CLR 238 (HCA), 243 (Gibbs CJ, Mason, Wilson and Brennan JJ). See also Metropolitan Properties Co (FCG) Ltd v Lannon  1 QB 577, 599 (Lord Denning MR) (EWCA Civ).
9 See, eg, Organization for Economic Cooperation and Development, Guidelines on Measuring Trust (OECD 2017); Edelman, Trust Barometer Archive (Edelman, 2 March 2017) <https://www.edelman.com/research/edelman-trust-barometer-archive>; American National Election Studies <http://www.electionstudies.org/>.
10 See, eg, the questions raised in O O'Neill, ‘A Question of Trust: Spreading Suspicion: The nature of trust and its role in society, and is there real evidence of a crisis of trust? (BBC, Reith Lectures, 2002) <http://www.bbc.co.uk/programmes/p00gpzfq>.
12 See, eg, Handsley, E, ‘Public Confidence in the Judiciary: A Red Herring for the Separation of Judicial Power’ (1998) 20 SydLR 183Google Scholar; Appleby and McDonald (n 6).
13 See further AK Thiruvengadam, The Constitution of India: A Contextual Analysis (Hart Publishing 2017) ch 4.
14 See the instruments listed in n 2.
15 See, for instance, ‘Mt Scopus International Standards of Judicial Independence’ (n 2) cl 5 (Judicial Discipline and Removal).
16 See, for instance, the Bologna Milano Global Code (n 3).
17 See the comparative analysis of systems in the United States, Canada, England and Wales, New Zealand and New South Wales (Australia) in G Appleby and S Le Mire, ‘Judicial Conduct: Crafting a System that Enhances Institutional Integrity’ (2014) 38 MULR 1, 41.
19 Constitution of the State of California, art VI, section 18 (Californian Constitution).
21 Supreme Court of California, California Code of Judicial Ethics (1 January 2013) canon 6A.
22 Judicial Conduct and Disability Act, 28 USC sections 351–364 (2012).
23 Judicial Conduct Commission and Judicial Conduct Panel Act 2004 (NZ).
24 Office of the Judicial Conduct Commissioner, ‘Referring a Complaint’ <http://www.jcc.govt.nz/complaintprocess.html#Referring>.
25 Courts of New Zealand, ‘Guidelines for Judicial Conduct’ (2013) 4 (para 6(a)) <https://www.courtsofnz.govt.nz/about-the-judiciary/judicial%20conduct/GuidelinesjudicialconductMarch2013.pdf>.
26 Judicial Discipline (Prescribed Procedures) Regulations 2013 (UK) SI 2013/1674, regs 9(1) and 10(1). See also ibid regs 17(1) and 19(1).
28 Constitutional Reform Act 2005 (UK) section 108.
31 Judiciary of England and Wales, Guide to Judicial Conduct (rev edn, 2013) 3.
32 Courts Legislation Amendment (Judicial Complaints) Act 2012 (Cth) sch 1 sections 5, 18 (Judicial Complaints Act). See also ibid sch 1 section 28.
33 Judicial Conduct Commissioner Act 2015 (SA).
34 Judicial Commission Act 2016 (Vic).
35 Judicial College of Victoria, ‘Framework of Judicial Abilities and Qualities’ (September 2008) <http://www.judicialcollege.vic.edu.au/judicial-education/framework-judicial-abilities-and-qualities>.
36 In this part, we are not considering the position of acting judges who, while they may be able to sit, are not appointed as permanent judges and are not necessarily/always subject to the same ethical and disciplinary framework in the different jurisdictions discussed. We consider acting judges further below.
37 Although there is no particular restriction on these activities: Clause 9.1 merely says that ‘Judges may avoid the sometimes difficult and controversial decisions that have to be taken by those who seek a more active and remunerative role.’
38 Bologna Milano Global Code (n 3) cl 9 (fn).
39 Californian Constitution art VI section 18(d).
40 Supreme Court Advisory Committee on Judicial Ethics, ‘California Code of Judicial Ethics, Advisory Committee Commentary’ (1 December 2016) 46 (canon 6A).
41 See final decision in the matter: Saxmere Co Ltd v Wool Board Disestablishment Co Ltd (No 2)  1 NZLR 76 (NZSC) (Saxmere No 2).
42 BV Harris, ‘New Zealand: Supreme Court Judge Resigns—Saga Raises Questions about Recently Enacted Judicial Complaints Legislation’  PL 436.
43 The Judicial Conduct (Judicial and other office holders) Rules 2014, r 21(i), although note the limited circumstances in which an investigation might continue in Judicial Discipline (Prescribed Procedures) Regulations 2014 (UK) SI 2014/1919, reg 23.
44 Judicial Conduct Investigations Office, ‘Annual Report 2014–15’ (2015) 8.
46 M Kirby, ‘Discipline of Judicial Officers in Australia’ (The Judicial Group on Strengthening Judicial Integrity Second Meeting, Bangalore, India, 24–26 February 2001) <http://www.hcourt.gov.au/assets/publications/speeches/former-justices/kirbyj/kirbyj_judicialgroup.htm>.
47 Courts Legislation Amendment (Judicial Complaints) Act 2012 (Cth) (Judicial Complaints Act).
48 Australasian Institute of Judicial Administration, AIJA Guide to Judicial Conduct (2nd edn, 2007)Google Scholar.
50 A Blow, ‘Judicial Pensions and Superannuation’ (Judicial Conference of Australia Colloquium, Adelaide, October 2004) 3 <http://jca.asn.au/wp-content/uploads/2013/11/2004-blow.pdf>.
51 M Warren, ‘Should Judges be Mediators’ (The Supreme Court and Federal Court Judges’ Conference, Canberra, 27 January 2010).
52 We note, for instance, that in Hong Kong, judges appointed to the Hong Kong Court of Final Appeal are forbidden from practising ‘as a barrister or solicitor in Hong Kong either while he holds office as such a judge or at any time after he ceases for any reason to hold office as such a judge and shall be deemed upon and by such appointment to be not qualified to practise as a barrister or solicitor’. See further Hong Kong Court of Final Appeal Ordinance section 13.
53 Phillips, F, The Modern Judiciary: Challenges, Stresses and Strains (Wildy, Simmonds & Hill 2010) 259Google Scholar.
54 Guide to Judicial Conduct (n 31) 28.
55 Gee et al. (n 45) 82.
56 Judicial Appointments Commission, ‘981 Terms and Conditions’ (April 2015) <https://jac.judiciary.gov.uk/981-terms-and-conditions>.
58 See, for example, Ministry of Justice, ‘Conditions of Appointment and Terms of Service Deputy Chancery Master, Deputy Costs Judge or Deputy Bankruptcy Registrar’ (July 2015); Ministry of Justice, ‘Conditions of Appointment and Terms of Service Deputy District Judge’ (December 2014).
59 Lord Falconer, ‘2007 Speech on Judicial Diversity’ (Wragge & Co, Birmingham, 1 February 2007) <http://www.ukpol.co.uk/lord-falconer-2007-speech-on-judicial-diversity/>.
60 Ministry of Justice, ‘Return to Legal Practice’ (Wired-Gov, 5 November 2007) <http://www.wired-gov.net/wg/wg-news-1.nsf/print/Return+to+legal+practice+05112007102000>.
61 ‘Professor Sir Hugh Laddie’ The Telegraph (London, 3 December 2008) <http://www.telegraph.co.uk/news/obituaries/3546410/Professor-Sir-Hugh-Laddie.html>.
62 J Rozenberg, ‘Mr Justice Peter Smith Loses his Judgment’ The Telegraph (12 July 2007) <http://www.telegraph.co.uk/news/uknews/1557197/Law-Mr-Justice-Peter-Smith-loses-his-judgment.html>.
63 Howell v Lees Millais  EWCA Civ 720.
64 Rozenberg (n 62). Mr Justice Peter Smith ultimately did resign in October 2017. However, his resignation coincided with the convening of a disciplinary panel hearing allegations of misconduct against the judge. See further T Connelly, ‘Mr Justice Peter Smith will retire tomorrow, days before disciplinary hearing’ (Legal Cheek, 27 October 2017) <https://www.legalcheek.com/2017/10/mr-justice-peter-smith-will-retire-tomorrow-days-before-disciplinary-hearing/>.
65 Thomas, CA, 2014 UK Judicial Attitude Survey: Report of Findings Covering Salaried Judges in England & Wales Courts and UK Tribunals (UCL Judicial Institute 2015) 30Google Scholar.
68 Mack, K and Anleu, S Roach, ‘The National Survey of Australian Judges: An Overview of Findings’ (2008) 18 Journal of Judicial Administration 5, 17Google Scholar.
69 K Walsh, ‘Blending It Like Justice Bennett: Federal Court Judge Leaves Bench Early’ Australian Financial Review (20 August 2015) <http://www.afr.com/business/legal/blending-it-like-justice-bennett-federal-court-judge-leaves-bench-early-20150811-giwy8i>.
70 Campbell, E and Lee, HP, The Australian Judiciary (Cambridge University Press 2001) 158Google Scholar, referring to C Milbourn, ‘Judges Face Sweeping New Rules on Ethics’ The Age (13 August 1998) 2.
71 See Judicial Superannuation Determination 2006 Amendment Determination 2015 (NZ). cf The Government Superannuation Fund Act 1956 (NZ) Pt 4, 5A, 5B and section 72, which relate to judges appointed before 1992. A comparable reform was introduced in Tasmania, which may raise similar tensions: see further Blow (n 50).
72 S Elias, ‘The Next Generation Judge (International Bar Association Conference, Auckland, 28 October 2004) <http://www.scoop.co.nz/stories/PO0410/S00289/cj-sian-elias-address-04-intl-bar-assoc-conf.htm>.
73 Clark, ML, ‘Judicial Retirement and Return to Practice’ (2010) 60 CathULRev 841, 866Google Scholar.
76 While there is a long tradition of judges taking on positions at academic institutions in various roles, we are not presently concerned with these positions, but, rather, positions that return the judge to a professional arena.
77 For instance, in South Australia, the appointment of Bruce Lander, former Judge of the Federal Court of Australia, as the first Independent Commissioner Against Corruption in 2013.
78 For instance, the appointment of Philip Cummins, former Judge of the Supreme Court of Victoria, as the Chair of the Victorian Law Reform Commission.
79 For instance, the chairs of the UK Law Commission and the Scottish Law Commission are always serving judges.
80 For instance, the appointment of Roger Gyles, former Judge of the Federal Court of Australia, as the National Security Legislation Monitor in 2014.
81 See, eg, Criminal Organisation Act 2009 (Qld) section 84(2), which, in specifying the qualifications for appointment as a Criminal Organisation Public Interest Monitor, states that ‘the Minister must give priority, among possible appointees who are otherwise equally qualified and suitable for appointment, to a retired judge’.
82 For instance, the appointment of former District Court Chief Judge Pat Shanahan and barrister Peter Davis to review the decision of the Queensland DPP Leanne Clare not to prosecute Senior Sergeant Chris Hurley over the death of Aboriginal man Mulrunji Doomadgee on Palm Island in 2006. Shanahan stepped down from the appointment after it was revealed that he had a potential conflict of interest, having sat on the committee that appointed Ms Clare: ‘Judge “Not Pressured” to Quit Mulrunji Review’ The Age (27 December 2006) <http://www.theage.com.au/news/national/judge-not-pressured-to-quit-mulrunji-review/2006/12/27/1166895341742.html>. He was replaced by former Chief Justice of New South Wales, Sir Lawrence Street.
83 488 US 361, 407 (1989).
84 California Code of Judicial Ethics (n 21) canon 4(C)(2).
86 Bingham (n 57) 76.
87 Hoole, GR, ‘The Forms and Limits of Judicial Inquiry: Judges as Inquiry Commissioners in Canada and Australia’ (2014) 37 DalhousieLJ 431, 445Google Scholar.
88 See also Brown, AJ, ‘Enquiring Minds or Enquiring Minders? Towards Clearer Standards for the Appointment of Royal Commissioners and Inquiry Heads’ in Connolly, AJ and Stewart, D (eds), Public Law in the Age of Statutes: Essays in Honour of Dennis Pearce (Federation Press 2015) 104, 133Google Scholar: ‘Is it possible … that the same legal principles could apply to limit the appointment even of a former judge to such an inquiry, if there was evidence that sufficiently adverse reputational impacts could accrue to their former court?’
90 See judgment at D Heydon, ‘Reasons for Ruling on Disqualification Applications’ (31 August 2015) <https://www.tradeunionroyalcommission.gov.au/Hearings/Documents/2015/Evidence31August2015/ReasonsforRulingonDisqualificationApplicationdated31August2015.pdf>.
91 Brown (n 88) 135–6. Brown argues for the same constitutional restrictions that limit the appointment of serving judges in Australia extend to former judges.
92 See, eg, consideration of the contours of this debate in Winterton, G, ‘Judges as Royal Commissioners’ (1987) 10 UNSWLJ 108Google Scholar, and for the differing positions that exist even just in the Australian jurisdictions, see McInerney, M and Moloney, GJ, Judges as Royal Commissioners and Chairmen of Non-Judicial Tribunals (Australasian Institute of Judicial Administration 1986) 21–2Google Scholar, 33–4, 107.
93 Guide to Judicial Conduct (n 31) 28.
94 AIJA Guide to Judicial Conduct (n 48) cl 7.1.
95 Language that mirrors the England and Wales Guide to Judicial Conduct (n 31).
96 PD Cummins, Judicial Ethics (Australian Bar Association Conference, London, 30 June 2009) 7 <http://www.lawreform.vic.gov.au/sites/default/files/The%20Hon.%20P.D.%20Cummins_Judicial%20Ethics%20(2009).pdf>.
97 R v Einfeld  NSWSC 119.
98 ‘Einfeld Stripped of QC Status’ (ABC News, 26 November 2008) <http://www.abc.net.au/news/2008-11-26/einfeld-stripped-of-qc-status/219816>.
99 Council of the New South Wales Bar Association v Einfeld (2009) 258 ALR 768 (NSWCA).
100 Although at the federal level in Australia constitutional requirements of tenure preclude such appointments: Australian Constitution section 72. As is explained below, such appointments are frequently used at the state and territory level.
101 In some jurisdictions, such as Hong Kong, Singapore and other smaller and developing jurisdictions, former judges from foreign jurisdictions form an important part of their judiciary. While the role and desirability of foreign appointments of this kind is deserving of scrutiny, we are not presently concerned with such appointments outside of the former judge's original jurisdiction.
102 Forge v Australian Securities and Investments Commission (2006) 228 CLR 45 (HCA)Google Scholar, 87  (Gummow, Hayne and Crennan JJ).
103 Blackham, A, ‘Judges and Retirement Ages’ (2016) 39 MULR 738, 750Google Scholar. See also Kirby, M, ‘Judicial Independence in Australia Reaches a Moment of Truth’ (1990) 13 UNSWLJ 187, 209Google Scholar; Kirby, M, ‘The Future of Courts – Do They Have One? (1999) 8 Journal of Judicial Administration 185, 186Google Scholar.
104 New Zealand Law Commission, ‘Review of the Judicature Act 1908: Towards a New Courts Act’ (2012) Report 126, 32 [3.65].
105 Principle 4(c) of the Declaration of Principles on Judicial Independence Issued by the Chief Justices of the Australian States and Territories, reproduced in ‘Independence of the Judiciary’ (1997) 15 Australian Bar Review 177.
106 Supreme Court Act 2003 (NZ) section 23; Judiciary Act 1908 (NZ) section 11A; District Courts Act 1947 (NZ) section 10A.
107 Judiciary Act 1908 (NZ) section 11; District Courts Act 1947 (NZ) section 10.
108 Constitutional Reform Act 2005 (UK) sections 39(4), (9). In the Crown Court, part-time judges are known as ‘recorders’, which are, in effect, temporary appointments as they hold office for five years. However, given the nature of appointment, it is not usual for these appointments to be drawn from the ranks of former judges, but, rather, legal practitioners who are allowed to continue to perform outside work, including private practice.
109 28 USC section 371. See further F Block, ‘Senior Status: An Active Senior Judge Corrects Some Common Misunderstandings’ (2007) 92 CornellLRev 533.
110 See, eg, in relation to recall 28 USC section 178.
111 Supreme Court Act 1970 (NSW) sections 37(4)–(4A).
112 Judicial Officers Act 1986 (NSW) section 44(1).
113 See empirical analysis undertaken in G Appleby et al., Temporary Judicial Officers in Australia: A Report Commissioned by the Judicial Conference of Australia (May 2017) ch 4 <http://www.jca.asn.au/wp-content/uploads/2013/11/P24_02_31-Temporary-Judicial-Officers-Report-May-2017.pdf>.
114 Constitution Act 1975 (Vic) section 81(2)(b); County Court Act 1958 (Vic) section 12(2)(b); Magistrates Court Act 1989 (Vic) section 9A(2)(b). Regarding Reserve Associate Judges, see Supreme Court Act 1986 (Vic) section 105B(2); County Court Act 1958 (Vic) section 17KA(2).
115 Judicial Conference, ‘Code of Conduct for United States Judges’ (20 March 2014) canon 4F.
117 Supreme Court of New South Wales, ‘Annual Review 2008’ (2008) 10.
118 S Meacham, ‘Walker Launches Legal Proceedings’ The Sydney Morning Herald (Sydney, 3 December 2011) <http://www.smh.com.au/national/walker-launches-legal-proceedings-20111202-1obgk.html>.
119 H Alexander, ‘Second Inquiry to Look at Uni's Plagiarism Case’ Sydney Morning Herald (Sydney, 7 August 2008) <http://www.smh.com.au/news/national/second-inquiry-to-look-at-unis-plagiarism-case/2008/08/06/1217702143410.html>.
120 A Crook, ‘Sydney Conservatorium of Music Dean: 8yr War of Words in One Explosive Doc’ (Crikey, 2 March 2012) <http://www.crikey.com.au/2012/03/02/sydney-conservatorium-of-music-dean-8yr-war-of-words-in-one-explosive-doc/>.
121 Meacham (n 118).
123 See Lord Kilmuir's statement reproduced in AWB Bradley, ‘Judges and the Media: The Kilmuir Rules’  PL 384. See also N Duxbury, Lord Kilmuir: A Vignette (Hart Publishing 2015).
125 Williams, J, ‘Judges' Freedom of Speech: Australia’ in Lee, HP (ed), Judiciaries in Comparative Perspective (Cambridge University Press 2011) 158Google Scholar.
126 AIJA Guide to Judicial Conduct (n 48) 23 (para 5.61).
127 New Zealand Guidelines for Judicial Conduct (art H(f)).
128 Code of Conduct for United States Judges, Canon 4(A)(1), and see also, eg, Californian Code of Judicial Ethics, canons 4(B) and 5(C).
129 Heydon, JD, ‘Threats to Judicial Independence: The Enemy Within’ (2013) 129 LQR 205Google Scholar.
132 Justice Alan Wilson, ‘Notes’ (Valedictory Ceremony, Banco Court, Brisbane, 26 March 2015) <http://www.sclqld.org.au/judicial-papers/judicial-profiles/profiles/awilson/papers/1>.
134 See further Ananian-Welsh, R, Appleby, G and Lynch, A, The Tim Carmody Affair: Australia's Greatest Judicial Crisis (NewSouth Publishing 2016)Google Scholar; M Groves, ‘Public Comments by Judges of their Colleagues: An Unhappy Australian Episode’ (2016) JML 1.
135 See, eg, such restrictions in the Constitution Act 1975 (Vic) section 83(4).
136 However, in the case of New Zealand, the government contributes 37.5 per cent of the salary for High Court judges to the pension scheme, with the judge contributing 5 per cent; and 33.75 per cent of the salary for other judges, with the judge contributing 4.5 per cent. It is therefore arguable that, even in this jurisdiction, the pension is largely composed of public funds, and therefore our proposed restrictions would be appropriate in some form: see Judicial Superannuation Determination 2006 (NZ).
137 Parliamentary Contributory Superannuation Act 1948 (Cth) section 21B.
138 See further discussion in Appleby et al. (n 113).
139 This is the position that pertains in the Australian state of Queensland: Judicial Remuneration Act 2007 (Qld) section 5A(1). And also the appointment of auxiliary judges in Western Australia: Judges’ Salaries and Pensions Act 1950 (WA) section 5(1b).
140 The idea of ‘compatibility’ is taken from Australian constitutional law jurisprudence, which restricts Chapter III federal judges from undertaking activities in a persona designata appointment that might be ‘incompatible’ with their exercise of federal judicial power; and that which prevents State Parliaments from vesting State courts with powers or functions that would be ‘incompatible’ with the position of those courts within an integrated federal judicial system: Grollo v Palmer (1995) 184 CLR 348 (HCA); Kable v DPP (NSW) (1996) 189 CLR 51 (HCA).
141 As Matthew Groves described the comments of Justice Alan Wilson: Groves (n 134) 24.
142 Parliamentary Contributory Superannuation Act 1971 (NSW) section 19AA. It would appear that section 19AA is intended to be read narrowly as only applying to members who cease ‘to be a member while proceedings for a serious offence are pending against the person’—that is, it will not apply to members who are subsequently charged with a serious offence.
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