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[T]he judiciary is the one branch of government which is an unlikely
candidate as despot; despite the great powers which it is capable of
exercising, especially in the area of judicial review, it remains very much
at the mercy of the other arms of government.
The Rt Hon Sir Ninian Stephen
The importance of the judiciary
In a democracy, constitutional government is ensured by a system of checks and
balances. In his 1908 analysis of the notion of constitutional government, Dr
Woodrow Wilson identified among the essential elements and institutions of a
constitutional system, ‘[a] judiciary with substantial and independent
powers, secure against all corrupting or perverting influences; secure, also,
against the arbitrary authority of the government itself’. Dr Wilson went
on to describe the courts as the ‘balance-wheel’ of a
constitutional system. He described the importance of a judicial forum in the
preservation of the liberty of the individual and the integrity of the
government in the following terms:
There the individual may assert his rights; there the government must accept
definition of its authority. There the individual may challenge the legality
of governmental action and have it judged by the test of fundamental
principles, and that test the government must abide; there the government
can check the too aggressive self-assertion of the individual and establish
its power upon lines which all can comprehend and heed. The constitutional
powers of the courts constitute the ultimate safeguard alike of individual
privilege and of governmental prerogative. It is in this sense that our
judiciary is the balance-wheel of our entire system; it is meant to maintain
that nice adjustment between individual rights and governmental powers which
constitutes political liberty.
Lord Diplock, an eminent English judge, once observed that:
. . . in any civilised society it is a function of government to maintain courts of law to which its citizens can have access for the impartial decision of disputes as to their legal rights and obligations towards one another individually and towards the state as representing society as a whole. The provision of such a system for the administration of justice by courts of law and the maintenance of public confidence in it, are essential if citizens are to live together in peaceful association with one another.
What is required to maintain public confidence in a judicial system will depend to some extent on what members of the public expect of that system and whether they perceive that their expectations of it are generally fulfilled. Lord Diplock identified three essential requirements for the due administration of justice by courts. They were:
. . . first that all citizens should have unhindered access to the constitutionally established courts of criminal or civil jurisdiction for the determination of disputes as to their legal rights and liabilities; secondly, that they should be able to rely upon obtaining in the courts the arbitrariment of a trial which is free from bias against any party and whose decision will be based only upon those facts which have been proved in evidence adduced before it in accordance with the procedure adopted in courts of law; and thirdly that, once the dispute has been submitted to a court of law, they should be able to rely upon there being no usurpation by any other person of the function of that court to decide it according to law.
For a long time, law-makers have recognised that if the courts of law are to function in the ways expected of them, and also command the confidence of the public they serve, the law must afford to the judges, and to other participants in judicial proceedings, certain protections against conduct which is, or can be, detrimental to the due administration of justice. This chapter is concerned with the legal protections accorded to judicial officers. It deals with aspects of the law of contempt of court and several aspects of the criminal law relating to the administration of justice. The chapter also examines the protections against legal liabilities that are accorded to judges in respect of their actions as judges. Finally, the chapter considers some constitutional constraints on removal of jurisdiction from the courts.
The principal work of those appointed as members of courts is, of course, to adjudicate disputes and other matters that entail the exercise of powers which, for constitutional purposes, are described as being of a judicial character. However, in legal systems patterned after England’s, those appointed to judicial office have been authorised to exercise some powers that are not, strictly speaking, judicial in character. For example, when judges of a particular court assemble to decide what rules they should adopt regarding the practice and procedure of the court, they are acting primarily as legislators who have been delegated legislative powers by the relevant parliament.
Traditionally, the powers accorded to judges have included authority to grant warrants to law enforcement officers, such as officers of police, to search premises and seize material found there that may be relevant to the investigation of criminal activities. But Australia’s High Court has ruled that the function of deciding whether a search or similar warrant should be granted is not, essentially, a judicial function; rather, it is an administrative function. In recent times, the High Court has held that the function of making a control order by a federal court pursuant to federal legislation is a judicial function.
The process of appointing judges is an issue of considerable interest in Australia, especially in relation to appointment of judges to the superior courts. The appointment of a new member of the High Court or of the various heads of jurisdictions at both State and federal levels tends to attract publicity of varying magnitude. There is often much speculation about the identity of the likely appointee before the decision is announced and, in the case of High Court appointments, a spectrum of commentary after the announcement about the appointee’s likely impact on the direction of the High Court in constitutional interpretation.
The reason for a special interest in High Court appointments is that judgments of the High Court, particularly in the public law arena, affect the so-called federal balance of the Constitution. The use by the Commonwealth Parliament of the power to make laws in order to achieve Commonwealth objectives over the protestations of the States has caused a number of State governments to chafe at their lack of real input into the appointment of High Court judges. The power of the Commonwealth Parliament to legislate with respect to ‘external affairs’ conferred by s 51(xxix) of the Commonwealth Constitution, and the broad interpretation given to that power in Tasmanian Dams by the High Court, evoked an outpouring of criticism by the advocates of State rights. The development of a jurisprudence of ‘implied rights’ has led to claims by critics of the High Court of a judicial usurpation of legislative powers of the Parliament or a subversion of the amendment process in s 128 of the Constitution. In 1996, in the wake of the decisions of the High Court in Mabo and Wik (which concerned the judicial recognition of some form of indigenous entitlement to land), a number of State Premiers urged a thorough re-vamp of the process of judicial appointment and called for the greater involvement of the States in making such appointments. Calls for reform of the judicial appointment process are generally focused on arguments that society would be better served by a more ‘representative’ judiciary in terms of gender, ethnicity and geographical diversity.
Historically, judges appointed by the English monarch held office at the pleasure of the Crown (durante bene placito). Thus, it was possible for judges to be dismissed peremptorily and without cause. The struggle between the English Parliament and the Crown, which ultimately led to the subjugation of the latter to the former, also led to the advancement of judicial independence. Judicial independence of the Crown was eventually secured by Article III, s 7 of the Act of Settlement 1701 (Eng), which provided as follows:
The judges’ commissions be made quamdiu se bene gesserint [during good behaviour] and their salaries ascertained and established; but upon the address of both Houses of Parliament it may be lawful to remove them.
At the federal level, judicial independence was given constitutional protection in s 72(ii) of the Commonwealth Constitution. This provides that federal judges (that is, Justices of the High Court and judges of the other courts created by the Commonwealth Parliament) ‘[s]hall not be removed except by the Governor-General in Council, on an address from both Houses of Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity’. In the case of South Australia, Western Australia and Tasmania, it is simply provided that it would be lawful to remove judges of the Supreme Court upon the address of both Houses of Parliament, although the Supreme Court judges in South Australia and Western Australia are stated by a separate provision to hold and remain in office ‘during good behaviour’. The grounds of ‘proved misbehaviour’ or ‘incapacity’ are expressly specified in New South Wales, Queensland, Victoria, the Northern Territory and the Australian Capital Territory.
The standard mode of removal is an address of both Houses of Parliament in New South Wales, South Australia, Victoria and Western Australia, or an address of the Legislative Assembly in Queensland (the only State with a bicameral parliament), the Northern Territory and the Australian Capital Territory. In addition, Victoria, Queensland and the Australian Capital Territory all provide for the convening of ad hoc bodies where an allegation of misbehaviour or incapacity has been made to the designated authority. These bodies are tasked with determining whether on the facts the misbehaviour or incapacity of the judge warrants his or her removal as a step prior to an address in Parliament to remove the judge.
‘All courts’, it has been said, ‘need the confidence of the public’. Members of the public should be confident that the courts can be relied upon to perform their functions independently, impartially and according to law. Without that confidence, judges cannot expect their decisions to be respected.
A number of conditions need to be satisfied if public confidence in the courts is to be sustained. Those appointed to judicial offices should be seen to possess appropriate qualifications. The terms on which judges are appointed must assure them independence of the other branches of government, but at the same time allow for removal of judges from office should they become incapable of performing their judicial duties or should they conduct themselves in ways which render them unfit to remain judges. Judges must also be disqualified from adjudicating cases in which their impartiality is open to question. There must be adequate provision for correction of judicial errors and for punishment of those who attempt to pervert the administration of justice. Hearings before the courts should generally be open to members of the public who care to observe them. There should be minimal legal constraints on the reporting of and comment on court proceedings. Judges should normally be required to give reasons for their decisions. Courts should be required to present periodic accounts to their paymasters in respect of their expenditures of the moneys made available to them from public funds for court purposes. By and large, the Australian court systems satisfy these basic conditions.
Australia’s legal system is a federal system and one under which power to establish courts is reposed in both the State and the federal Parliaments, and also in the legislatures of the self-governing Territories of the Commonwealth. The courts of the Territories ultimately owe their existence to legislation of the federal Parliament.
While there are distinctions drawn between federal and State courts and between federal and State jurisdictions, the Australian judicial systems are nevertheless integrated, to an extent. This integration has been achieved in several ways: by the establishment of the High Court of Australia as the ultimate court of appeal for Australia; by the use of State courts as repositories of federal jurisdiction; by complementary State legislation, which cross-vests the State jurisdictions of the Supreme Courts; and by constitutional and legislative provisions dealing with the execution of court processes and judgments. There are also institutional arrangements to facilitate the transfer of cases from the court in which proceedings have been initiated to another court when the other court is considered to be the more appropriate forum.
In 1995, an English judge, Lord Taylor of Gosforth, observed that the term ‘accountability has become one of the buzzwords of the age’. It is a term often used interchangeably with several other words and phrases, such as ‘being answerable’, ‘responsibility’ and being the ‘subject of scrutiny’. Lord Taylor’s observation was made in the context of general remarks on what some had perceived to be a lack or insufficiency of accountability on the part of members of the judicial branch of government. In recent times, several Australian judges have found occasion to speak or write about the same subject.
One can only speculate on why there have been charges of lack of appropriate judicial accountability. Sometimes the charges may have been generated by widely publicised episodes involving official inquiries into the conduct of individual judges, sometimes by judicial decisions which have re-shaped the law. Critics of such decisions may allege that it was wrong for the judges to have decided as they did, in that they exceeded their limited law-making functions and trespassed into a domain reserved for an elected legislature whose members are accountable to electors. Concerns about judicial accountability may even have been spawned by increased awareness among members of the general public about the operations of the courts. Chief Justice Doyle of the Supreme Court of South Australia seems to have recognised this possibility when he observed:
There is a greater public awareness that judges suffer from the normal human frailties. This is a time in which there are high public expectations of government and of the professions, and the public are, as we all know, highly and rightly critical when acceptable standards are not met.
There is nothing wrong with the notion that judges should be accountable. As Justice McGarvie pointed out, ‘[i]n a good democracy, power is never exercised without accountability for it’. But if judges are to be held accountable, one needs to ask to whom are they accountable, for what and in what ways? There is the further question of what can and should be done when judicial accounting is found to be unsatisfactory.
My late colleague, Emeritus Professor Enid Campbell, and I were very delighted when Cambridge University Press gave us the green light to proceed with a second edition of The Australian Judiciary. We were much heartened by the warm reception to the first edition of the book. Unfortunately, Enid did not recover from an illness and unexpectedly passed away before work on the second edition could commence. In this edition I have taken into account a number of interesting and controversial developments pertaining to individual members of the judiciary and to the institution as a whole.
This new edition follows the scheme of the first edition of the book. As was stated in the first edition, the principal aim of this book is to contribute to a better understanding of the Australian judiciary. Australians are entitled to engage in critical discussions about the judicial branch of government, as is befitting a healthy democracy; however, when they do so, it should be from an informed standpoint. Sir Gerard Brennan, Chief Justice of the High Court of Australia 1995–8, said:
The judiciary, the least dangerous branch of government, has public confidence as its necessary but sufficient power base. It has not got, nor does it need the power of the purse or the power of the sword to make the rule of law effective, provided the people . . . have confidence in the exercise of the power of judgment.
At Commonwealth, State and Territory levels in Australia, the judiciary is a branch of government separate from the legislative and executive branches and independent of them. The functions of the courts also differ from those of the other branches of government. While courts have a capacity to shape the law, it is a limited capacity. The principal function of courts is, of course, to adjudicate disputes according to the law. Judges cannot develop the law except in the course of an adjudication, and then only in an incremental fashion.
The judicial branches of government are separate from the other branches in the sense that their members cannot be members of the legislature, and, subject to a few exceptions, judges cannot act as agents of the executive branch. The judicial branches can be regarded as independent of the other branches so long as their members are assured that they are able to exercise the judicial function free from interference by either a legislature or an executive, and also that they cannot be prejudiced by other branches simply on account of their decisions.
The second edition of H. P. Lee's The Australian Judiciary provides a timely update to this seminal text. The only definitive survey of the entire Australian judiciary, this text describes and evaluates the work, techniques, problems and the future of the different tiers of courts and judges. It discusses the role of the judiciary as the third sector of government and analyses and comments on judicial conduct, judicial independence and impartiality, the work of judges beyond the courts, the accountability of judges and the dangers to judicial institutions. It is an excellent reference work which will appeal to legal scholars and practitioners throughout Australia and internationally.
Judges are expected to observe high standards of conduct, in both their official and private capacities. Sir Gerard Brennan once said: ‘High standards of judicial conduct are rightly expected by the community, for public confidence in the Courts and Judges is essential to their authority and therefore essential to the rule of law’.
This requirement is reiterated as a fundamental principle by international instruments. The most significant of these instruments, the Basic Principles on the Independence of the Judiciary, requires judges to ‘conduct themselves in such a manner as to preserve the dignity of their office and the impartiality and independence of the judiciary’.
Justice J B Thomas has said that: ‘It is necessary for the continuity of the system of law as we know it, that there be standards of conduct, both in and out of court, which are designed to maintain confidence in those expectations’.
The question arises as to what these standards are. The conduct of judges, both on and off the Bench, is regulated by a combination of rules of law, conventions and ethics. The criminal law, whether expressed via the common law or by statutes, proscribes certain conduct that strikes at the heart of the system of administering justice. These forms of behaviour are so repugnant that they are, or should be, plainly obvious to holders of judicial office. There are other forms of behaviour, however, that do not amount to criminal offences but which, if engaged in by a judge, would affect the standing of the judiciary. A good example is when a judge insists on adjudicating on a matter where he or she has an undoubted vested interest. In such a case, the rule against bias operates to maintain public confidence in the judiciary. In relation to ‘judicial ethics’, Justice J B Thomas observed: ‘The term “ethics”, as understood in the practical sense, commonly refers to a collection of rules or standards of conduct expected of a particular professional group’.
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