The Sunshine State must keep up with the progress being made in other states and territories by enacting parameters through which conduct by members of the judiciary can be better monitored, argues one industry leader.
In conversation with Lawyers Weekly, Bar Association of Queensland president Rebecca Treston QC said the state cannot ignore that there have been developments in other Australian jurisdictions, and that is has to keep pace.
“[Law] is a national profession. We all should be aspiring to the same sort of standard. So, I think Queensland Bar’s just getting on board with what’s happening interstate, and indeed across the country. I think it’s important that we just have a level of consistency, in terms of behaviour,” she said.
What the Qld Bar is attempting, Ms Treston explained, is — in consultation with the state courts and other relevant stakeholders — to prepare a judicial bullying policy, covering an array of issues including conduct occurring in court that is directed at advocates and self-represented litigants.
“Queensland has never had a judicial bullying policy before. And so the Bar Association is constructively trying to speak to the court about what we might develop. We have done a review of all the different policies that exist around the country, and also exist in the UK, Canada and New Zealand and tried to see which ones are working.
“[Ours will be] trying to develop a protocol as to what is good judicial behaviour: what we expect, and what they can expect from us in return.”
When asked if she thinks the Qld judiciary will be willing to work with advocates on this issue, she said: “Definitely.”
“We have a draft policy already prepared, but we have got an open mind about the court’s views, as to how that might be improved, or changed, and the plan is to move forward cooperatively. Not much point in developing a policy that the judiciary is not prepared to sign up to.”
Judicial bullying is not necessarily worse than in other Australian jurisdictions, she mused, but acknowledged there had been “perhaps a general reluctance to talk about it”.
“I think it’s a common experience that by far the majority of judicial offices conduct themselves with the utmost decorum, properly and fairly, so far as the advocates before them are concerned. So, it’s a very small problem, I think. Nevertheless, it’s a problem that I think we’re all aware can have a significant effect on people who are appearing before courts, because it is a workplace for barristers,” she explained.
“And if you are, you know, being shouted at, or pilloried or ridiculed, that can have quite serious mental health consequences. And I think we are just at the stage now where, as a community and as a profession, we just don’t think people should have to suffer those sorts of consequences, as a result of going to work.”
Judicial bullying can — at the extreme end of the spectrum — cause some barristers to leave the profession altogether, Ms Treston said, while others may request not to appear in front of particular judges.
Having a proper policy in place can, she posited, encourage those advocates in feeling that the bar is “actually is an environment where you’re just not going to be subject to that”.
It will also be crucial, she added, to measure the effectiveness of a new judicial bullying policy — in light of underreporting of misconduct such as sexual harassment in law firms — whereby anonymous reporting via surveys or other metrics is facilitated and members of the judiciary can glean a better understanding of how they are perceived.
“Anecdotally, of course, we know how many complaints we get, for example, at the Bar Association, whether they’re made in writing to the CEO, whether they’re a phone call to me, or anything in between. So, you’d hope to see a change in that.
“If you identified that Judge X was someone about whom complaints are made, you might see, across the board, Judge X’s behaviour generally improve. I think sometimes it’s a bit of a lack of awareness that that’s the effect that their behaviour is having on the people in front of them. I don’t think it’s necessarily driven by malice, or an intention to cause mental health issues. I’m sure it’s not.”
Judges are in a funny position, Ms Treston explained, because they don’t get to see what other judges are doing.
“They sit alone in their court, and unless they’re in the court of appeals, and they’re reading a transcript, or listening to the tapes, they actually don’t know what happens in other people’s courtrooms. So, there’s not a lot of peer review, in terms of things like that.”