The judiciary faces “a predictable area of future tension” in its relationship with the executive and legislative arms of government in light of increasing demands for accountability, Australia’s most senior judge has warned. A key area in which this tension may become evident is the sanction of judges for mistakes and “misconduct” that fall short of “misbehaviour”.
The task of devising appropriate forms of accountability that are consistent with the requirements of independence represents a challenge for modern government, Chief Justice of the High Court of Australia, Murray Gleeson, told the 14th Commonwealth Law Conference, held in London in September.
Creating sanctions for errors that fall short of demonstrating incapacity is a difficult task, Gleeson said. “This is a topic that is certain to produce tensions, especially with the increasing size of the judiciary, and the increasing range of judicial officers who are regarded as being entitled to full independence.”
In Australia, magistrates are the most obvious example of that body of officers, he said. The position of magistrates continues to evolve and while in the past there had been general acceptance of different degrees of independence among those exercising judicial power, he said the theoretical basis of that acceptance is likely to be subjected to closer scrutiny.
“Realities must be accommodated; change will not proceed evenly; and issues are blurred by the difficulty of drawing a clear dividing line between judicial and other decision-makers,” Gleeson said. “Even so, if the right of citizens to an independent judiciary is to be recognised in full measure, in the longer term it may be difficult to justify significantly different levels of independence within the permanent judiciary.”
According to the Chief Justice, devising a method for dealing with serious allegations against judges is not difficult: “If there is an allegation of a crime, criminal justice takes its course. If there is an allegation of incapacity, or non-criminal misbehaviour, so serious that it may warrant removal, then ultimately it is a matter for Parliament.”
The real problem, however, concerns complaints against judges that, even if substantiated, would not justify removal. “All complainants believe their complaints are serious,” he said. “But only a very small percentage of the complaints I have seen could possibly warrant removal.”
Unfortunately, most complainants would not be satisfied by being told that a judicial officer would be ‘spoken to’. The challenge, therefore, is to establish a formal sanction that falls short of removal of the judge — and does not threaten the independence of the judicial function.
“The exposure of judges to public or private censure, or some penalty falling short of removal from office, is, at least in Australia, a controversial topic,” Gleeson told the conference. “The judiciary is not a disciplined force, subject to command, like the armed services.The independence of judges includes independence of one another”.
While senior judges may develop appraisal procedures to enable them to discharge their responsibilities, there is a clear danger if performance review extends beyond matters such as “timely delivery of judgements into areas relating to substantive decision-making,” he said.
“The justice system has its own well-established system of performance review: it is the appellate process. Judges enjoy, as a matter of public policy, substantial immunity from civil and penal sanctions for erroneous decisions.”
The common law confers on judges an immunity from civil liability,” he added. “The basis of the immunity is the constitutional imperative of judicial independence. It is difficult to reconcile that immunity with some alternative system of administrative penalties or sanctions, falling short of removal for incapacity.”