Download PDF (213.01 KB) ↘ Download DOCX (40.49 KB) ↘ Download RTF (180.67 KB) ↘ Deakin University Law School - August 2022 A twilight lecture by The Honourable Justice Ross Robson Justice of the Supreme Court of Victoria The Honourable Justice Josh Wilson Justice of the Federal Circuit and Family Court of Australia Professor of Law Deakin University Introduction For several years the Deakin Law School has generated great interest in and derived great enjoyment from hosting a twilight lecture series held on the subject of legal ethics. Tonight is another instalment in this highly successful series. Legal practitioners must behave ethically on a daily basis in the discharge of their duties. Our last twilight lecture covered that topic comprehensively. For those of you not present at that last lecture, the areas covered included –ethics in a profit focussed profession ; your duties to the court; to whom is the duty owed; why the duty arises; lawyers as officers of the court; the duty of disclosure; the duty not to abuse the court’s process; the duty to not corrupt the administration of justice; the duty to conduct cases efficiently and expeditiously; and the lawyer’s duty to fellow practitioners and to clients. As is apparent from that list of issues, the focus was at that time on various obligations which bound practitioners. In this twilight lecture, the focus is on the ethical obligations under which judges operate. On a previous occasion we addressed Deakin Law School students on the subject of judicial accountability. That paper was intended for publication in what was once the Deakin University Law Review. Some of the issues covered included –judicial independence – various concepts of it, its core elements and impermissible attempts to make inroads into it; the constitutional doctrine of the separation of powers; parliamentary democracy and an independent judiciary as the twin pillars of Australian constitutional law as safeguards of the rule of law; “The Three Independences”1 – independence of position, independence of decision and independence of thought; security of tenure as a principal safeguard for judicial independence; the exercise of judicial authority without fear or favour; international standards of judicial independence; a judiciary composed of judges of integrity, independence, competence, fairness, transparency and impartiality; the concepts of judicial independence, accountability and removal and their concurrence with judicial accountability, censure and the removal of a judge; the prevalence of judicial bullying both in and out-of-court in the judge’s interaction with litigants, legal representatives, court staff, helpers including translators, legal aid personnel, court administrators, clerks, transcription personnel and even security; examples of poor judicial behaviour exhibiting incivility, rudeness or bullying; the meaning of misbehaviour as a form of misconduct as canvassed by the Honourable Sir George Lush, the Honourable Sir Richard Blackburn and the Honourable Andrew Wells QC as commissioners on the Senate Select Committee on Allegations Concerning a Judge, namely former High Court Justice Lionel Murphy; grounds of proven misbehaviour or proven incapacity on the basis of, but not limited to, bullying, sexual harassment, racial discrimination or disability harassment; delivering judgments in a timely manner – the three month rule; increased scrutiny of judges and remedies for poor judicial conduct; complaints procedure against judicial officers and the role of the Judicial Commission; procedure for the removal of a judicial officer from office; examples of Australian judicial officers that have been the subject of inquiry by reason of alleged unfitness to hold office; the intersection of public office and a judge’s private life; abuse of judicial power for private advantage; social media and court policies on its use; and limitations on private and public conduct as a judicial officer including upholding the status and reputation of the judiciary, maintaining public confidence and respect for the judicial office. As you can see, in previous lectures we have addressed an array of critically important issues relating to day-to-day activities of a judge, most of which have far reaching consequences. Tonight’s theme is “Judicial Conduct in the New Millennium”, examining the issues from the judge’s perspective. Expectations of the judge once appointed Once the judge assumes the mantle of office, the judge will be struck by two things – first, what expectations the judge may have about the discharge of judicial duties and second, what the judge can foresee that society expects from the judge. Both require examination. To be appointed as a judge is a very great honour. It usually signals the culmination of special achievement in one’s professional career. Appointment usually carries respect for the office and personal respect for the appointee. The terms and conditions both federally and at state level are very favourable. The job involves examining a problem that litigants are unable to resolve themselves, to find a solution that is just according to law. That is to be contrasted with the practitioner’s role of advocating for the outcome most advantageous for one’s client. All judges we know are true to their oaths “to do right to all manner of people according to law without fear, affection or ill will”. That oath involves issues of neutrality in decision-making, diligence, the application of the law, the avoidance of caprice, no bias and no influence. A highly illuminating insight is given by former Chief Justice of the High Court of Australia, the Honourable Murray Gleeson AC in his extrajudicial writings “The Role of the Judge and Becoming a Judge”.2 It repays close reading. Upon assuming judicial office the new judge must divest himself or herself of a great deal of the judge’s professional past. That divesting includes shedding previous political associations, no longer making high profile public speeches, ceasing involvement on certain boards or bodies, ceasing fundraising activities, ceasing any high profile social media and eliminating media involvement. Even involvement in professional bodies needs to be scaled back. At the very least, that will have a personal consequence to the judge. The high profile barrister who becomes a judge will need to step out of the public spotlight, to cease making YouTube videos and to step down from Ted Talks. To some new judges, that reality will be a godsend whereas for others it will be a severe clipping of the former barrister’s wings. The judge should not withdraw entirely from society. To the contrary. The judge is of most use if engaged as an active and interactive member of society. The judge is expected to participate as a member of the community yet in a more restrained manner than might apply to most other members of the community. Naturally, ordinary human interaction goes on for the judge as normal when meeting a friend in the street or playing tennis with a long standing tennis partner, for example. Yet in everyday public behaviour when the judge is in high visibility, the judge should adopt behaviour consistent with the office the judge holds and that normally involves a higher level of circumspection. Thus, a judge should not behave loudly or obnoxiously at a table at a restaurant nor should the judge be seen to be publically adversely affected by alcohol. Even the once barristerial passionate and vocal barracker at a football game, as the judge at a football game, the judge should aspire to be little more than a face in the crowd. The commercially-active barrister sitting on the boards of a variety of companies will need to retire from those boards upon assuming judicial office. By resigning, the judge removes (although the judge does not eliminate) the possibility of an appearance of bias towards that company if that company should ever be a litigant before that judge. Equally, upon the judge removing himself or herself from the board of that company a corresponding diminution occurs in the prospect of influence of the company or by the company. It is far from uncommon for high ranking QCs to be board members of major domestic or international companies from which activity they derive very considerable directors’ emoluments. Their highly paid highly public profile on those boards must be brought to an abrupt end upon assuming judicial office. For many, that will be a bitter pill to swallow. The point put simply is that to a certain extent judges must withdraw from high profile life once they accept judicial office. Some judges are only too pleased to do that while others regret doing so. But withdrawal is a natural and necessary consequence of assuming judicial office. Neutrality is another essential personal characteristic that is a consequence of assuming judicial office. That is not the same as saying the judge must in all things be invisible. It means that the judge should cease any vocal public presentation on controversial issues. Obviously, we are not canvassing the situation of a judge armed with a loud hailer leading a group at a public rally on climate change, for example. Here we are focusing on the use and abuse of social media or media generally. As we all know, social media can be a powerful tool in skilled hands. It can be deployed to reach vast numbers of followers and therefore is capable of orchestrating enormous influence on very large segments of the community. If you entertain any doubt about its sphere of influence, look no further than the way it is often weaponised for political purposes. Look also to its use for good in raising money or galvanising support for various social issues. Judges should not be on social media – not in their capacity as judges, at any rate. Of course, as ordinary members of society judges may wish to post photographs of overseas trips, of family – even of the latest coffee art trends. But they should not be using twitter or other social media to discuss any aspect of litigation in which they will be involved, are involved or have been involved. Litigants would be entitled to be horrified to read about the judge who will soon try their case expressing views about the case. Most Australian courts have protocols that contain comprehensive stipulations about judges using social media. Similar stipulations exist regarding the interaction of the judge and the press. At some point over a judge’s career on the bench it is likely that his or her judgment will be the subject of media attention. For instance, judges dealing with matters pertaining to the criminal law are often subjected to scrutiny by the press, “that sentence is too light!”, “this one is too harsh!” and so forth. Judges must exercise restraint from engaging with such criticism. Public scrutiny is perhaps a natural corollary of judicial independence. Indeed, in a democratic society we ought to be more concerned by a judiciary that is never criticised, than one that is. But what of the judge’s associates? Once one accepts that the associate is an extension of the judge then it is no leap in logic to see that the associate, just like the judge, should abstain from court related social media. The high point of the conundrum emerged in the United States about seven years ago. As a high profile case was unfolding before the judge, the judge’s associate was using social media to provide a running commentary of the associate’s view of the way the trial was unfolding. It was not a verbatim account of who said what. Instead it was selective paraphrasing of salacious evidence given by one of the main witnesses, laced with the associate’s commentary about the credibility of what was said. It was replete with “you’ll never believe what he just said” or “that’s a crock” and “OMG – what b…s…”. That associate’s claim to fame was her status as the associate to the judge hearing the case. That did not give her licence to engage in such bad behaviour. Accepting judicial office carries with it the need for discretion. Being discrete comes more easily to some than to others. The judge should be discrete in discussions concerning the cases before the judge as well as court business more generally. So far as the cases before the judge are concerned, the judge should take care when discussing the litigants in a case, their witnesses, their evidence, counsel appearing before them, their instructing solicitors and the likely outcome of the case. That applies irrespective of whether the conversation is between court colleagues or social friends external to the law. Similarly, utmost discretion is called for when dealing socially with persons in the legal profession or external to the profession about the judge’s judicial colleagues. Whatever may be the judge’s personal views about his or her colleagues, the judge should keep those views to himself or herself. To do otherwise has the risk of occasioning damage to the court itself. Discretion is also called for in attending social engagements. Judges are often favoured with invitations to events, not because they are particularly close to the invitor but rather, because the invitor wishes to enhance the credibility of the event by naming among the guest list one or more members of the judiciary. Judges are usually careful to decline such invitations especially where the other guests may be of dubious reputation. But what of the social event that begins in an unremarkable way then it turns unpleasant? It is far from uncommon at social events involving younger people for those guests to engage in small or largescale recreational drug use at those events, say at a 21st birthday celebration. Does the judge ignore the drug taking? Does the judge leave the function? Minds will differ on the point. Some judges will remain at such an event so long as the drug use does not directly involve the judge. Others will flee the event for fear of being tainted by it. It would probably attract newspaper headlines if a judge were to be found on premises raided by police. The provision of references for people is usually problematic unless the judge knows the person personally. And even then situations can be unpredictable. About seven years ago a judge in the federal sphere was requested by his associate to provide what the associate told the judge was a reference in relation to a minor traffic infringement. The judge duly provided his associate with the reference which was generally favourable. The associate failed to reveal to the judge giving the reference that the associate had been charged with cocaine possession. The deception was revealed when The Daily Telegraph published a front-page story in May 2016 headlined “Law & Snorter”. For the proffering of a false reference the associate was separately charged with perverting the course of justice. The associate was sentenced by the District Court of New South Wales. The need to detach from segments of the judge’s former professional life will often leave the judge feeling hollow and isolated. In one way that is hardly surprising because those former work colleagues were usually very deeply enmeshed in the judge’s former professional world. To many newly appointed judges it is seriously invasive to be told that the judge should not socialise with old friends just because they are appearing before the judge or the judge is yet to hand down the decision in a case in which counsel (an old friend) appeared. Some newly appointed judges resent the relentless workload that requires evening work most nights and restricts the judge to holidays when the court tells the judge he or she may take those holidays (as compared to previous personal freedoms). That should not be taken in any way to be an exhaustive analysis of the expectations on a judge once appointed. The elation usually felt upon appointment carries with it a commensurate obligation to work very hard, in seeming isolation and in a manner that restricts interaction with old friends. Those aspiring to judicial office, keep those observations in mind. Society's expectations of the judge So far we have addressed the personal expectations that the judge may have of himself or herself once the judge is appointed to judicial office. But what of society’s expectations? When judges speak of society’s expectations of them usually four issues are raised. In no special order, society expects –independence – of position, of decision and of thought; impartiality; fairness; and competence.3 Taking each in turn, judicial independence, as a pillar of the rule of law, entails security of tenure and independence from government or influence. It entails independence to reach one’s own conclusion and it entails independence so that the judge’s opinions are enforced without circumvention or defiance by the legislative or executive branches of government. Impartiality, self-evidently, entails the notion that the judge will hear and determine the case before that judge on its merits and not according to a predisposition held by the judge. There can be no prejudgment, ever! Fairness requires all parties to have a proper opportunity to put before the court their evidence and their arguments which the judge must address with an open mind. Competence is a quality largely aspirational but necessarily a prerequisite for societal respect in the judiciary and therefore in the maintenance of the rule of law. Aside from being faithful to the judicial oath, society expects that the judge will sit in the hearing of cases with such frequency as court protocols demand and that the judge will provide a decision within a reasonable time of the date on which the decision is reserved, usually not more than three months. Those two issues are within the judge’s control. But what of demands made by society that, by reason of systemic deficiencies in the court’s system, cannot be quickly rectified? All courts are under constant media attack about delays. Chief Justices at all levels are doing all they can to fix the delays. But if the individual judge is sitting with the frequency that his or her court requires and if that judge regularly and diligently publishes judgments within the three month period expected, what more can the individual judge do? In our view, the individual judge can do nothing more. Unrepresented litigants With increased frequency litigants in person are conducting cases in our courts, unassisted by legal representatives. That may be by reason of impecuniosity or it may be by choice. Irrespective of the reason, the legally unrepresented litigant causes real issues for the judge. Most unrepresented litigants have no legal training. They are always bursting to tell their version of what they perceive to be the important issues in the case. Rarely is their perception of the important issues matched by reality. Most have no idea of procedural issues, evidentiary matters, statutory principles or even the facts that need to be determined to effectively and finally decide the issues in dispute between them. In the family law arena, the frequency of problems arising from regular appearances at trial from unrepresented litigants caused former Chief Justice Nicholson to lay down guidelines for judges to tell unrepresented litigants before the trial commenced. The case is Re F: Litigants in Person Guidelines.4 It requires the judge to explain in advance the sequence of the trial and in particular, the sequence of events involved in an opening, how each witness will be dealt with in evidence-in-chief, in cross-examination, in re-examination, final addresses, evidentiary objections, the consequences of not calling witnesses and other things. To adhere strictly to the pronouncements in that case imposes a very heavy burden on the judge. The judge must be satisfied that the litigant understands the lesson the judge gives. Invariably, while stating that the litigant has followed what he or she was told by the judge, the litigant in person usually ignores the judge’s instruction. When the litigant is invited to ask questions (assuming no allegations of family violence have been made so as to attract the operation of s 102NA of the Family Law Act) the litigant in person invariably cross-examines with inadmissible questions, with questions expressed in a hostile or argumentative way or he or she engages in questions that are simply off topic. This can be extremely testing for the judge. But the judge must remain ever calm, composed and patient. There is no scope for an intemperate judicial explosion nor will an appeal court permit a judgment to stand where the judge is badly behaved towards the litigant in person. Behaviour that might drop counsel in very hot water is usually forgiven when undertaken by the litigant in person. Ordinarily, where a litigant in person conducts his or her own case, the proceeding is prolonged unnecessarily. The real issues to be decided are concealed and not revealed. Good conduct is frequently jettisoned. It is far from unusual for litigants in person to be rude to one another and rude to the Bench. They often take every point – good, bad or indifferent. They are often repetitive. They are never objective and rarely concede a point. They generally want their day in court, irrespective of the personal trauma or the loss of income they occasion to their opposition. In short, litigants in person are particularly problematic. Litigants in person can be unforgivably rude and disrespectful. They talk over the judge, sometimes they swear at the judge, they can behave in a threatening or intimidatory manner towards the judge and often disrupt the court process. While the judge has powers to deal with a vulgar or threatening witness for contempt in the face of the court, that power is exercised sparingly. The power undeniably exists (R v Slaveski)5 but the modern trend is not to punish for contempt in the running of the case. Reasonable judicial minds will differ on the correct approach to be adopted but the fact remains that different approaches are adopted by different judges. For the litigant in person who constantly speaks over the judge when talking, the judge often attempts to get agreement to only one speaking at a time. For the litigant in person who disrupts the trial, the judge might simply leave the bench returning to continue the case only if the litigant in person agrees to behave. Alternatively, the judge can arrange for a court security officer to sit next to the litigant in person so as to remove the disruptive litigant in person if he or she disrupts the court again. The focus nowadays is for the judge to remain in total control but not to behave with retribution, anger or with any want of decorum. Appeal courts are quick to denounce precipitous bursts of anger by the trial judge characterising any such behaviour as a form of bias. That is a far cry from the more robust judicial behaviour exhibited in the 1980s when contempt in the face of the court earned for the contemnor a stay in the cells, to be brought up only when the contemnor purged his or her contempt, usually by an apology and an undertaking to be of good behaviour for the duration of the trial. One might wonder whether court was better controlled in that way in those days. A creditable argument can be advanced that being unfailingly polite to litigants in person nowadays requires the judge to indulge those litigants in ways that add to the cost, delay and prolongation of the entire litigation process. Two seemingly insoluble imperatives are operative in the year 2022 with litigants in person. The first is an unarguable overarching purpose in litigation for it to be adjudicated as cost effectively, as time efficiently and as procedurally fairly as circumstances allow.6 Against that is the imperative that every party must be heard and the case must be conducted in a manner commensurate with the skills, knowledge and ability of the litigant. The fact that a litigant is not represented and instead appears in person is no reason to refuse to hear that litigant nor is it a basis to conduct the case in the way the case might be conducted if the litigants were represented by Queen’s Counsel. Good judicial ethics require the judge to insist in the conduct of the case being tempered by the skill set exhibited by those appearing before the judge. In reality, the judge will derive little assistance from the litigant in person, the case will go longer than scheduled and all issues – good, bad or indifferent – will be pursued. All of that is set against a backdrop where the judge must behave in a textbook manner in the way the case is run, especially when the litigant in person is not bound by any ethics in the conduct of the case. Interaction with court staff To this juncture we have canvassed how a judge ought to interact with members of the profession, the press and litigants. However it would be remiss not to shed light on the proper manner for a judge to interact with his or her staff. Judges rely heavily on court staff to facilitate the exercise of their judicial function. Hence, a judge must treat all court staff with courtesy and respect. That includes anyone from IT support staff to a judge’s associate. The latter requires further comment. Judges rely on their associates to assist with the running of court, to provide legal research and for the general administration of a judge’s chambers. It is by its nature a close relationship. As the recent example of former Supreme Court Justice Peter Vickery highlights, the intellectual calibre of a judge is no assurance that he or she will behave appropriately. Such behaviour has no place in the judiciary, nor any place in society. Most judges do not find it difficult to draw the line between what is appropriate and what is not. While the judge’s relationship with his or her associate may be friendly, the judge’s associate is never the judge’s personal friend – at least not during the associateship. The maintenance of professional boundaries is vital. Unconcious bias Significant research worldwide has been devoted to unconscious bias in decision making – judges included. The concept is well understood in modern society. But the concept is of particular relevance to judges when discharging their judicial function as it requires the judge to jettison a human reaction embedded in us all. In common parlance, unconscious bias is prejudice or unsupported favour or rejection in relation to a particular person, group or thing when compared to some other person, group or thing in a manner usually considered to be unfair. Unconscious bias is normally regarded as being antithetical to diversity and inclusionary behaviour. The results of a variety of studies have reported that most humans, to a greater or lesser degree, are at risk of exhibiting or they actually do exhibit unconscious bias. They do so based on upbringing, exposure to particular events, a refusal to reject discriminatory conduct or, worse, simple ignorance. The judicial oath recorded above requires judges to do their work without fear or favour and without affection or ill-will. They must come to their task with minds wholly unpolluted by prejudice and bias – express or unconscious. A few years ago the National Judicial College of Australia conducted a weekend seminar on the subject.7 Topics addressed included –“human judges”; judicial management of emotion; dealing with the dead, and what they leave behind: managing complex family emotions outside family law; implicit bias; judicial emotion and impartiality; the impact of emotion in the courtroom; judicial stress: a head of jurisdiction’s duty of care?; mindfulness practice; emotion in sentencing: offender’s remorse and victim impact statements; wellbeing literacy and positive psychology; and superhuman or super humans? How structures and relationships can encourage wellness in the judiciary and the legal profession. Judges need to behave as if they are school prefects. They need to be exemplars of all things virtuous. They must not jay-walk, or run a red light, or fail to declare every cent relevant to tax. They must be near invisible. When it comes to their thought processes, those must be neutral, open and unaffected by influence. Australian society is increasingly multi-cultural. Scores of non-English languages are spoken as peoples’ first languages. On an everyday basis courts across the country deal with witnesses from wide-ranging and diverse backgrounds. They bring cultural values and experiences to the evidence they give. Often their behaviour in the witness box is premised on their cultural background. For example, in some cultures persons are trained to avoid eye contact. In other cultures the views of the elders must be given effect irrespective of the direct evidence the witness is capable of giving. In other cultures still, persons (often women) are schooled from a very young age to say as little as they are able and to be seemingly invisible. Some are trained to be conciliatory, not assertive. When those cultural traits are exhibited when giving evidence in the witness box those persons are frequently seen as witnesses who did not give truthful evidence. When western standards are applied to the way those witnesses would be expected to behave in the giving of their evidence, an imperfect result follows. The witness who was raised from birth to be conciliatory and non-assertive, gives evidence in that vein, usually conceding issues put in cross-examination that a more assertive person from a different cultural background would never concede. The judge will be oblivious to those cultural traditions and codes of behaviour. Unconsciously, the judge will apply his or her codes of behaviour when assessing the veracity of that witness. The judge may well form an adverse view that the witness never looked at the cross-examiner, or that the female witness was barely audible and conceded every point in cross-examination, or that the male witness agreed with every question asked. Just as it is wrong for any of us to see three tattooed bikies walking on the street, then to conclude they are gang members intent on committing an aggravated burglary, so too is it wrong to approach a case thinking all persons of a particular section of society are habitual liars. Judicial ethics require judges to judge cases without fear, favour, affection or ill-will. Those ethics compel us to repudiate unconscious bias in precisely the same way we eschew actual or apprehended bias. Bias is bias – conscious or otherwise. It has no place in our law. Institutional judicial independence Much has been said of the importance of the individual independence of a judge. Of equal importance is institutional independence. Judges must uphold the constitutional independence of the judiciary in order to ensure the authenticity, efficacy and longevity of the doctrine of the separation of powers. To maintain its institutional integrity the court must hold the trust and confidence of the public, or as Chief Justice Allsop describes it – “the law and legal doctrine can never be allowed to become the tools of the powerful”.8 Thus, appropriate distance must be kept between the judge and the legislative and executive arms of government. As the High Court has indicated in Totani9 and Fardon v Attorney General10, the institutional integrity of the court must not waver. So much so was more recently reiterated by the High Court in Vella v Commissioner of Police (NSW).11 Conclusion These observations are intended to stimulate discussion and debate. We welcome questions. The Honourable Justice Ross Robson The Honourable Justice Josh Wilson August 2022 Footnotes: 1 H. Jefferson Powell, The Three Independences (2004) 38 University of Richmond Law Review 603. 2 Chief Justice Murray Gleeson AC, ‘The Role Of The Judge And Becoming A Judge’ (Speech, National Judicial Orientation Programme, 16 August 1998). 3 Chief Justice Murray Gleeson AC, ‘The Role Of The Judge And Becoming A Judge’ (Speech, National Judicial Orientation Programme, 16 August 1998) <https://www.hcourt.gov.au/assets/publications/speeches/former-justices/…;. 4 (2001) 27 Fam LR 517. 5  VSC 643. 6 Aon Risk Services Australia Pty Ltd v Australian National University (2009) 239 CLR 175. 7 National Judicial College of Australia, ‘Judges: Angry? Biased? Burned Out?’ (Australian National University, 2-3 March 2019) < https://njca.com.au/njca-anu-joint-conference-2019-judges-angry-biased-…;. 8 Chief Justice James Allsop, ‘Being a Judge: Judicial Technique, Independence and Labels’ (Speech, Sir Harry Gibbs Memorial Oration, 30 April 2022). 9 (2010) 242 CLR 1. 10 (2004) 223 CLR 575. 11 (2019) 269 CLR 219.