Chapter 6
Judicial Complaints Handling
6.1
The terms of reference for the inquiry include consideration of the judicial
complaint handling system and the method of termination of judicial
appointment. Arrangements for judicial complaint handling are of particular
importance to the committee and also for a number of submitters.
6.2
Aside from compulsory retirement, which is discussed in chapter 3, the
only method of termination is for a judge to be removed on the statutory
grounds of misconduct or incapacity. (It is, of course, always open to a
judicial officer to voluntarily resign or retire from his or her judicial
position at any time.)
6.3
This chapter commences discussion of the termination of judicial
appointments arising from a complaint about judicial conduct. This chapter
deals with:
-
some basic principles underpinning appropriate termination;
-
an outline of the current arrangements for judicial complaint
handling; and
-
a critique of their adequacy.
Termination
Introduction
6.4
Fair and effective complaints handling is a critical component of a
judicial system that is both respected and just, and seen to be so. To assess
whether a model is adequate, it is relevant for the committee to consider questions
such as: does the complaints handling model reflect the importance of judicial
independence? And is this also balanced by the ability to ensure that behaviour
ranging from undesirable to unacceptable can be dealt with appropriately?
6.5
The importance of a comprehensive judicial system was concisely
explained by the Flinders Judicial Research Project:
Guarantee of judicial tenure during good behaviour, with
removal requiring executive and legislative action, is the core protection for
security of tenure, which underpins judicial independence and impartiality.
Methods of termination and handling of complaints each raise issues of security
of tenure.[1]
6.6
Some key principles that should underpin arrangements for termination
were articulated to the committee by the ICJ-Victoria which noted that:
...judges should not be subject to arbitrary removal,
individually or collectively, by the executive, legislative or judicial
branches of government. Removal of judges from office must be limited to fair
and transparent proceedings for serious misconduct within judicial office,
criminal offence, or such incapacity that renders a judge unable to discharge
his or her functions. The system prevalent throughout Australia of removal
being made by the Governor‑General or the Governor following an address
of parliament should continue. No lesser system is appropriate; nor could it
guarantee the same independence from political interference which the
Australian judiciary presently enjoys.[2]
6.7
The committee agrees with the ICJ-Victoria that the severe step of
revoking a judicial appointment should follow the requirements described and
should be limited to very serious misconduct or incapacity. This is consistent
with the current federal arrangements. However, this system does not establish
a procedure for determining when removal is justified, nor does it address what
should occur when judicial conduct (both inside and outside court) is less
serious, but still undesirable.
Current statutory arrangements
6.8
There are two grounds on which federal judges can be removed for
inappropriate behaviour: proved misconduct or incapacity. Relevantly, section
72 of the Australian Constitution provides that:
The Justices of the High Court and of the other courts
created by the Parliament – (ii) shall 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.
6.9
The Gilbert + Tobin Centre has observed in relation to section 72 that:
...while s 72 has secured the integrity of the federal
judiciary, its apparent simplicity is nevertheless troubling. Parliament is
able to remove a judge only for 'proved misbehaviour or incapacity'. The most
ambiguous word in that phrase is 'proved' which clearly suggests both a
standard and a process. But on these the Constitution is unhelpfully silent.[3]
6.10
There is no settled process for the application of section 72. A current
Member of Parliament, the Hon Duncan Kerr SC MP, has articulated the need for
reform in this area for many years. His concerns include that a clear mechanism
needs to be in place for the operation of s 72 before it is needed,
otherwise:
...any ad hoc procedure put in place after a specific
allegation of judicial misconduct or incapacity has been brought to light can,
and almost certainly will, be criticised as lacking at least some of the
institutional attributes appropriate for a fair hearing and respect for the
rule of law.[4]
6.11
In Victoria, Part IIIAA of the Constitution Act 1975 sets out a
process for the independent investigation of allegations of misbehaviour or
incapacity and the procedure for removal. The Chief Justice of Victoria's view
of this arrangement is that, 'While the test for removal remains consistent
with other Australian jurisdictions, the procedure provides transparency and
certainty should there be a need to invoke it, rather than relying on an ad hoc
arrangement.'[5]
6.12
The Gilbert + Tobin Centre has undertaken helpful analysis of some of
the problems presented by the formulation of s 72 in relation to 'incapacity'.
It is worth setting out the Centre's consideration:
Greater attention should also be given to the particular
problems of proving 'incapacity' which has traditionally been obscured by a
focus on the controversial ground of 'misbehaviour'. This is odd since
uncertainties over standards, rights and procedures must be even greater in a
case of incapacity given that the criminal justice process would not provide a
suitably analogous model for resolution of the problem. Additionally, with over
150 members of the federal judiciary, it seems that physical or mental
impairment is far more likely to arise than inappropriate behaviour. In light
of recent incidents involving State judges, the incidence of mental or
psychological incapacity, far less immediately detectable than a physical
impairment and yet likely to be a much greater impediment to fulfilment of
judicial duties, demands particular attention and care.
At present it appears there are only two alternatives when a
member of the federal judiciary becomes incapacitated by mental illness. There
is the constitutional response – removal by both houses – which is likely to
encompass some kind of ad hoc investigatory body attended by many of the doubts
which Mr Kerr has highlighted. Or there is the possibility of an informal
approach made by the individual's colleagues.
We submit that the Committee should closely examine the
approach to incapacity enabled by the powers and procedures of the Judicial
Commission of New South Wales.[6]
6.13
The problems associated with the investigation of incapacity issues are
similar to those affecting the ability to respond to inappropriate behaviour by
judges. The section 72 problem emphasised by the Hon Duncan Kerr MP applies both
to misconduct and incapacity issues. In addition, there is neither a process
nor official judicial authority to deal with 'misconduct' or 'incapacity' if
the conduct is undesirable but not serious enough to form the basis for
removal. In these cases the only option is, as discussed above, an informal
approach made by the individual's colleagues, usually the head of the
jurisdiction.
Current approaches to complaint handling
6.14
The Federal Court, Family Court and Federal Magistrates Court have all
adopted similar complaints handling protocols, which were mentioned in chapter
2.[7]
It has been noted that, 'All the federal complaints procedures are slightly
different in their wording, but indicate that the complaint will be dealt with
by the chief judge of each court.'[8]
6.15
These have similarities with the protocols adopted in the states and
territories, which 'come originally from a draft approved by the Council of
Chief Justices of Australia and New Zealand.'[9]
However, the grounds upon which judges of inferior courts and magistrates may
be removed from office can be broader than those for other judges. Grounds vary
from jurisdiction to jurisdiction, and examples include that a magistrate can
be removed 'following a Supreme Court determination that "proper
cause" exists.'[10]
6.16
For the purpose of this discussion of federal arrangements, the
committee considered in detail the Family Court complaint handling process.
The Family Court judicial complaints handling policy is readily available on
the Family Court website or upon request to individuals. The Family Court
detailed its approach to complaint handling in its submission to the committee.
As this detail is of particular interest to the committee in considering the
adequacy of judicial complaint handling it has been repeated in full in the box
below.[11]
Family Court
Complaint Handling Protocol
6.17
The Family Court takes seriously complaints about judicial officers or
about the administration of the Court and the conduct of its staff. The
policy does acknowledge the importance of the public providing feedback about
judicial conduct so that the Chief Justice and the judge concerned may deal
with the complaint appropriately.
6.18
Family law, by its very nature, generates unhappiness and discontent
amongst those who are involved in the processes. Certainly not all litigants
feel satisfied with the outcome of proceedings. Because of the highly
personal and emotional nature of family law litigation the parties are not
necessarily able to satisfactorily comprehend the way in which the processes
have worked and frequently their ability to make rational decisions is
impeded. This situation is aggravated where the litigant is self‑represented.
6.19
The Deputy Chief Justice, on behalf of the Chief Justice, has primary
responsibility for the management of complaints against judicial officers and
is assisted in the consideration and investigation of the complaints by a
Judicial Complaints Adviser (a legally qualified Registrar of the Family
Court). The first step in the process is for an assessment to be made of the
complaint to ensure that it is about the conduct of the judicial officer,
rather than the result of a judicial decision or a matter in proceedings
which might be raised as a ground of appeal. Care is taken to ensure that if
the complaint is primarily about the result of a judicial decision the
complainant is advised immediately about his or her rights of appeal.
6.20
Many complainants wrongly believe that the Chief Justice can interfere
and overturn the decision of a Trial Judge independently of the appeal
system. Such instances need to be identified quickly and the complainant
advised of his or her appeal rights under the Family Law Act 1975 (Cth).
6.21
Once the nature of the complaint has been identified, an appropriate
initial response acknowledging the complaint is provided as soon as
practicable. If the complaint pertains to conduct of a judicial officer, a
detailed consideration of the proceedings may be undertaken. This may involve
an examination of the transcript or a review of the available audio of the
proceedings.
6.22
A detailed and comprehensive reply is then prepared by the Judicial
Complaints Adviser, and is reviewed and settled by the Deputy Chief Justice.
In certain circumstances, the judge concerned will be sent a copy of the
complaint by the Deputy Chief Justice and invited to respond should the Judge
wish.
6.23
Depending on the focus of the complaint, the response may also provide
explanation about such matters like:
-
the manner in which judicial appointments are made;
-
the doctrine of the separation of powers and the role of the
Judiciary in that context;
-
the oath or affirmation a Judge is required to take before the
Chief Justice of the Family Court (or another Judge);
-
the professional training or experience of Judges of the Court;
-
the power of the Court to make decisions when an application is
made to the Court, based on findings of fact pertaining to relevant evidence
presented to the Court; or
-
the ability of individuals to request Judges disqualify
themselves (through the filing of an appropriate application) because of a
real possibility of biased or prejudiced mindset being brought by the Judge
to the determination of an application, or that there might be a conflict of
interest.
6.24
Complaints about perceived administrative deficiencies may be made
through the Family Court's complaint process and will be investigated and
dealt with accordingly. Complaints about the delay in the delivery of
judgments, by protocol, are made through the relevant State or Territory Law
Society or Bar Association. This ensures that anonymity for the person
enquiring is maintained and that any perception there might be prejudice
against that person in the construction and delivery of the judgment is
obviated.
6.25
Importantly, if a complaint might have an adverse effect on the
disposition of the matter which is currently before the Court, a response to
the complaint may be deferred until after the final determination of the
matter. The complainant would ordinarily be advised of this course of action. |
6.26
The Family Court also has a general feedback complaints policy which
explains what action an individual may take in relation to perceived
administrative failures. It provides that 'complainants who are dissatisfied
with the Family Court's response in relation to administrative issues may seek
an internal review within the Family Court.'[12]
6.27
The Federal Magistrates Court has advised that it has similar complaint handling
policies for both judicial and administrative complaints.[13]
6.28
The committee commends these courts for their continuing commitment to
transparent and effective complaint handling.
6.29
The Family Court protocol is reproduced above, and the Federal Court protocol
and the Federal Magistrates Court Judicial Complaints Procedure are
attached at Appendix 8. A copy of each of the policies is also available
on the website of the respective court. As noted in chapter 2 of this report, the
High Court does not have a written complaint handling policy.[14]
Evidence to the committee
6.30
The Law Council of Australia is of the view that the current system of
judicial complaint handling established by section 72 of the Constitution
supplemented by complaint handling policies is working well. The Council has
stated:
The Federal Courts have each established effective informal
complaints handling mechanisms with usually the head of the jurisdiction being
ultimately responsible for deciding the response to a complaint. The Law
Council believes that these existing mechanisms of dealing with complaints have
operated successfully.[15]
6.31
The Law Council notes that the protocols recognise 'the constitutional
limitations and safeguards' for dealing with complaints against the judiciary
so they cannot provide a mechanism for disciplining a judge. However, the Chief
Justice is nonetheless able to 'advise, warn, and take appropriate
administrative steps' in relation to alleged misconduct.[16]
6.32
The courts themselves are not as sanguine about the current system.
While of the view that the existing protocols have promoted judicial
accountability, they are open to improving the current system while also
ensuring judicial independence.
6.33
Senior judges have pointed to a lack of options for dealing with
complaints against members of their courts. For example, Chief Justice Wayne
Martin of the Supreme Court of Western Australia's experience is:
I receive approximately two complaints per week relating to
Judges and Magistrates in various Western Australian courts. I lack any
facility or capacity to appropriately investigate or respond to those
complaints, although obviously if they were of a kind which suggested
significant misconduct, I would refer them to the appropriate Head of
Jurisdiction for investigation. However, neither I nor any other Head of
Jurisdiction has appropriate facilities or mechanisms for the conduct of such
investigations, and there may well be situations in which it may be alleged by
either the complainant or the judicial officer that the Head of Jurisdiction
has a conflict of interest in the conduct of such an investigation.[17]
6.34
The Chief Justice of the Family Court addressed the issue directly with
the committee when asked if she is entirely comfortable about the
responsibility of the head of jurisdiction in complaint handling or whether
there is an argument for going outside the court system:
I am not entirely comfortable. I think if you asked any of
the heads of jurisdiction of any of the jurisdictions they would say they were
not. I think the Judicial Commission of New South Wales works extremely well
because the responsibility is removed from the Chief Justice. If we could have
some sort of a commission then I would be in favour of it.
...
I am aware of the discussions that are going on at the Standing
Committee of Attorneys-General and between the Council of Chief Justices and
the Attorney-General’s Department about a commission. I just think it is a long
way off—desirable, but a long way off.[18]
6.35
Interestingly, Chief Justice Bryant and Chief Federal Magistrate Pascoe
have proposed developing a joint complaints oversight committee between the two
courts. The purpose of the oversight committee is to provide a second tier of
review for complaints made against judicial officers.[19]
6.36
The suggestion for a new approach to complaint handling apparently arose
from a desire to adopt some elements of the New South Wales Judicial Commission
approach by providing some independent scrutiny of complaints. Federal Chief
Magistrate Pascoe explained that the proposed 'oversight committee' model would
provide the opportunity to incorporate, for example, a very experienced retired
judge and perhaps [a person with] other qualifications such as psychology.[20]
6.37
In addition to allowing complainants to 'feel that they were being heard
by an external party who would have a completely independent view'[21]
it is anticipated that the panel would also 'build up some expertise in the
sorts of complaints that occur in family law and maybe help [the Family Court
and Federal Magistrates Court] to develop some further protocols on, if
necessary, changing court procedures or making judicial officers aware that
some things may be done unwittingly which can offend or upset some litigants.'[22]
6.38
The preliminary idea has been given careful thought by the Chief Justice
and the Chief Federal Magistrate and has been developed to quite a level of detail.
The Chief Justice explained:
I have in mind that the committee might have on it the
Ombudsman—I am not sure as to the Constitution but it probably would not have
me. In a sense that committee could then review. They would have to be careful
about the wording because they would not have any disciplinary powers either.
But it could review the first letter and, if they want, they could make
recommendations that something further be done—another letter be written, an
apology be made or even an ex gratia payment or something could be made in
cases like that. This would just add a bit more transparency to the process for
the public.[23]
Other submissions
6.39
A significant number of submissions to the committee sought to put
forward detailed case histories, and most recalled circumstances that would
lend themselves to at least a chance of resolution if a judicial commission
were available. While the committee does not suggest that the majority, or even
many, submitters would be likely to meet with success through a judicial
commission process as discussed in the preceding section, it is likely that a
significant number would find solace from at least having their complaints
reviewed through an independent process.
6.40
Many submitters relating personal experiences were received in camera,
and cannot be quoted, but they commonly displayed disaffection with the
judicial process and frequently with individual judges. Submission 32 to the
inquiry alleges that a judge failed to recuse himself in spite of a personal
relationship with a respondent to a matter in which the author, the applicant,
was unsuccessful. While acknowledging that unsuccessful litigants are often
frustrated by decisions going against them, the author contends that there is a
possibility that the judge was biased by virtue of his personal relationship,
and considered that:
If a judicial commission were available to review the conduct
of judicial officers, this uncertainty could be clarified and litigants would know
whether they had received a decision from an impartial judge.[24]
6.41
Some other examples provided to the committee were by a member of the
committee, Senator Heffernan. Some of the types of matters of concern to
Senator Heffernan were outlined by him during the public hearing process in the
following terms:
For instance, in a hypothetical situation, where there is
police information and surveillance et cetera coming in, where police gain
information of a judge who may have assisted in the writing of a submission to
a court and that judge eventually sat in judgment of that submission when it
appeared in court. If that sort of information came to the police, there is
nothing in the present system the police can do about it.[25]
6.42
Mr Ernest Schmatt, Chief Executive of the Judicial Commission of New
South Wales, gave evidence on the role of the Commission in relation to
interviewing potential complainants:
If those people make an appointment and see me, I will spend
time with them. I will listen to their grievance. I have been in practice for a
long time and I am very familiar with all the court processes, so I can usually
determine from what they are saying what their real grievance is about. Many of
them are complaining about their solicitor or their barrister and, if that is
the case, I can refer them to the appropriate authorities. Some of them have a
complaint about other people who are really not even involved, so I can point
them in the direction. I obviously do not give any legal advice. Many people
are just looking for an appeal. Again I would not give them legal advice but
what I would say to them is that they should seek some independent advice as to
what appeal rights may be available to them. Most of those people go away
happy. They have had somewhere where they can air their grievance that has not
been a formal complaint but it has been dealt with, in my opinion, effectively.
I sometimes do that by telephone calls as well.[26]
6.43
Mr Schmatt also pointed out that the Commission benefited both the
complainant and the judicial officer. He said the Commission:
[P]rovides people who have a grievance with a place where
they can take their grievance and it will be properly investigated by an
independent body. It also protects judges from scurrilous complaints because,
during that preliminary investigation stage, everything is dealt with in
private so there is no harm done to the reputation of the judicial officer.[27]
Committee view
6.44
It is of particular interest to the committee that not only did
individuals relate experiences with the justice system which left them feeling
strongly that current avenues of complaint are seriously inadequate, but also
that courts themselves are seeking to establish more sophisticated processes
for dealing with complaints. It seems to the committee that courts find
themselves dealing with a range of complaints and that processes currently
available to them are inadequate in many ways.
6.45
Even when a court has detailed its thorough approach to complaint handling
(such as the Family Court procedure discussed above) this still does not
address the concern that it is the judges who are judging the judges.[28]
In addition, even when a process exists, it is questionable whether a system
with a limited statutory framework and a constrained ability to deal with
complaints is adequate.
6.46
In the committee's view it is important to ensure that there is a
complete statutory framework for termination that is principled and
comprehensive. Along with thorough and appropriately transparent appointment
processes and terms of appointment, the committee's vision is for an updated
system from which to continue to build an impressive judicial model that brings
with it the benefit of a national approach but properly preserves the unique aspects
each jurisdiction wishes to retain.
6.47
It is not enough to have a judicial system that only deals with
misbehaviour at the level of serious misconduct or incapacity. Any robust
complaint handling mechanisms need to be able to deal appropriately with
conduct that falls short of these levels of conduct, but which is nonetheless
undesirable or inappropriate. Of course, an appropriate complaint handling
system is one that is balanced with safeguards for judicial independence.
6.48
The committee is persuaded that because of the simplicity of the conduct
requirements in section 72 there are legislative gaps in the existing
arrangements. In the first place the section does not address the process
required for any inquiry into serious misconduct or incapacity. Secondly, there
are no statutory arrangements for dealing with less serious complaints of
judicial misconduct. Courts are left to adopt informal mechanisms and have no
specific investigative or complaint handling resources or expertise.
6.49
Although to date there appears to have been no disastrous outcomes from
the existing arrangements, it is apparent that there is the potential for this
to occur. The committee is also mindful of the opportunity to build on the strong
foundations of our existing judicial system to equip judicial officers with
best practice arrangements for the next 100 years.
6.50
In the committee's view the Family Court and Federal Magistrates Court
suggestion to develop a more sophisticated approach to complaint handling by
introducing an 'oversight committee' is commendable. However, it seems to the
committee that there is still a question about whether permanent alternative
arrangements, such as an established judicial commission, would be preferable.
This is discussed in detail in the next chapter.
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