An Examination of the Application of the General Principles of the Rule of Law to the Court Structure and Judiciary of the State of New South Wales
AN EXAMINATION OF THE APPLICATION OF THE GENERAL PRINCIPLES OF
THE RULE OF LAW TO THE COURT STRUCTURE AND JUDICIARY OF THE
STATE OF NEW SOUTH WALES*
The Honourable Justice Clifford Einstein**
[Responsible for the conduct of the vast bulk of civil and criminal litigation commenced each year, lower court judges are daily confronted with massive case lists, intensely crowded courtrooms and unrepresented parties often unsure of their rights, ignorant of court procedure and overawed in unfamiliar, decidedly intimidating surroundings]
Introduction - The judiciary and the rule of law
1 The majestic concept of the 'rule of law'- part legal, part social and part governmental- is subject to no easy definition. Of all those who have attempted this rather thankless task, perhaps the most celebrated is that of the late Professor A.V. Dicey in his seminal work An Introduction to the Study of the Law of the Constitution. First published in 1885 and in nine subsequent editions up to 1959, for Dicey any society governed by the rule of law necessarily manifests the following three characteristics:
1. That "no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land."[1] This proposition is fundamental; while legal rights can be granted, and legal obligations imposed, by individuals in the form of (predominantly) legislators or judges, such actions can only be legitimately undertaken when those individuals are themselves acting within the constraints of the legal process.
2. That "every man, whatever be his rank or condition, is subject to the ordinary law ... and amenable to the jurisdiction of the ordinary tribunals." Alternatively expressed by Dicey, "every official, from the Prime Minister down to a constable or collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen."[2]
3. That individual liberties are "the result of judicial decisions determining the rights of private persons in particular cases brought before the courts" rather than from "the general principles of the constitution."[3] Of course, this statement is subject to a degree of modification in those jurisdictions, such as Australia and China, with written Constitutions which contain precisely such general principles. But Dicey's proposition nonetheless remains valid given that, first, such principles are ultimately applied to individual circumstances and transformed into actual rights by the decisions of courts and, second, it is only through the process of judicial interpretation that such principles are given substantive meaning.
2 Analysed from an objective perspective, however, it is apparent that these three basal characteristics of a society governed by the rule of law are subject to one essential pre-condition, namely that the interpretation, application and enforcement of legal rules be undertaken by a judiciary that is beholden to none but the law itself.
3 As recently stated by Justice Debelle of the Supreme Court of South Australia:
"Shortly stated, if the rule of law is to be effective, it is necessary that there be an independent judiciary and an independent legal profession. It requires but a moment's reflection to realise that, if the ordinary citizen is not able to seek redress from a court comprising an independent judge free from any kind of influence or pressure, be it influence or pressure from government, big business, or any other institution capable of influence, he or she has no real safeguard against arbitrary executive action and is seriously handicapped, if not prevented, from challenging any bureaucratic act affecting property, employment, income or any other aspect of daily life. The judiciary is in truth the last bastion between citizen and government or between citizen and any other powerful litigant."[4]
4 At the most pragmatic of levels, the critical elements of such an independent judiciary relate to matters such as reasonable security of tenure, fixed and unchangeable rates of remuneration while a judge holds office and a degree of administrative independence from other branches of government. In a more procedural sense (and as detailed in an earlier paper, "Judicial Ethics [Paper 1]"), in the common law system the independence of the judiciary is reflected in the primary obligation of the judge to determine disputes only on the basis of the propositions of fact and law placed before him or her by the disputants. It is no part of the function of the judge, for example, to inform him or herself of the facts in issue, call witnesses on his or her motion or play an active role in the examination and cross-examination of those called by the parties. For stronger reason, lest the question of actual or perceived bias be raised, it would be manifestly inappropriate for a judge to advise a party as to the strength of their case or the optimal means of conducting it.
5 It is with the above general principles of the rule of law in the common law system in mind that this paper sets out to examine their application to the court structure and judiciary of the State of New South Wales. Beginning with the practical aspects, examined will be:
(a) the constitution, jurisdiction and business of the various courts which together comprise the judicial branch of the New South Wales government; and
(b) the manner, conditions of appointment and responsibilities of the judicial officers of these courts, including the phenomena and status of 'acting judges.'
6 Moving onto a more topical issue, however, the focus of this paper will be on the application of the principles of the rule of law and judicial independence to the realities of the lower court experience in New South Wales. Such inferior courts, or courts of 'limited jurisdiction' as they are sometimes designated, are faced with phenomenal challenges in the discharge of their business that are simply not present in the superior courts (or present to a far lesser extent). Responsible for the conduct of the vast bulk of civil and criminal litigation commenced each year, lower court judges are daily confronted with massive case lists, intensely crowded courtrooms and unrepresented parties often unsure of their rights, ignorant of court procedure and overawed in unfamiliar, decidedly intimidating surroundings.
7 The question then becomes this; to what extent can, or indeed should, lower court judicial officers strive to conform to the epitome of the detached, purely adversarial common law judge when struggling to dispense justice in an environment far removed from the dispassionate reflection of legal theory? How can a judge maintain the strict non-interventionist role demanded by authorities such as Jones v National Coal Board when he or she must hear, say, 10 civil or 20 criminal matters in a sitting day of 5 hours? The flippant answer is, of course, 'with great difficulty', but this paper will seek to argue that the underlying task of lower court judges, one that is of critical importance to the rule of law, is to effectively balance this tension between, on the one hand, the need to maintain the degree of independence required of a judicial officer and, on the other, the equal imperative of managing cases in a manner commensurate with the realities of the lower court experience.
The court structure of New South Wales
8 The court structure of New South Wales is based upon a distribution of business between three courts of generic jurisdiction, an ultimate court of appeal known as the High Court of Australia and a variety of limited jurisdiction courts established to deal with specific subject-matter.[5]
The Local Court of New South Wales
9 A court of record constituted by the Local Courts Act 1982 (NSW), the Local Court sits at the base of the New South Wales court structure and is presided over by judicial officers known traditionally as 'magistrates.'[6] Overwhelmingly the busiest of all the State's curial entities, the Court sits at 158 metropolitan and regional locations so as to ensure that "the justice system is accessible not only to city dwellers, but also to people living in the most remote areas of the State."[7]
10 Civil proceedings commenced in the Court are entered into either the General Division or the Small Claims Division[8] in accordance with the following limitations:
(a) General Division: The Court sitting in the General Division has jurisdiction to hear and determine actions for the recovery of any debt, demand or damage in which the amount claimed does not exceed $60,000. An identical jurisdictional limit is applied in respect of actions for the recovery of detained goods or the assessed value thereof.[9]
(b) Small Claims Division: The Court sitting in its Small Claims Division has jurisdiction to hear and determine actions for the recovery of any debt, demand or damage in which the amount claimed does not exceed $10,000. An identical jurisdictional limit is applied in respect of actions for the recovery of detained goods or the assessed value thereof.[10]
11 A Judge of the Court sitting in either Division has the power, provided that the parties consent, to refer proceedings to mediation if he or she thinks such a referral to be appropriate.[11] Appeals against a point of law may be taken to the Supreme Court as of right, although in the case of the Small Claims Division proceedings such an appeal lies only on the grounds of lack of jurisdiction or denial of natural justice.[12] A party may bring an appeal in respect of a mixed question of fact and law, but only with the leave of the Supreme Court.[13]
12 The criminal business of the Court falls predominantly into three categories:
(a) the disposal of 'summary offences', which are in general terms offences in the lower range of seriousness attracting a penalty of less than 2 years imprisonment[14];
(b) the hearing of more serious charges ordinarily tried in higher courts, known as 'indictable offences', if the prosecution or the defence consent[15]; and
(c) the holding of 'committal hearings' in respect of such indictable offences,[16] in which the prosecution is obliged to satisfy the Court that there is a "reasonable prospect that a reasonable jury, properly instructed, would convict the accused person of an indictable offence."[17] If this burden is satisfied, the accused person is committed for trial in either the District or Supreme Courts; if not, he or she is discharged in relation to the offence.[18]
13 Appeals as of right may be taken against conviction and/or sentence to the District Court[19], against conviction and/or sentence on a point of law alone to the Supreme Court[20] or against conviction and/or sentence in respect of an environmental offence to the Land and Environment Court.[21]
14 The Court may punish for contempt of court in the face or within the hearing of the court, and may refer other questions of contempt to the Supreme Court for determination.[22]
The District Court of New South Wales
15 Constituted as a court of record by the District Court Act 1973 (NSW), the District Court occupies the intermediate position in the New South Wales court structure. The Court is vested with both civil and criminal original jurisdiction, exercised by a single judge sitting alone[23] (as the tribunal of both fact and law) save for cases tried before a jury.[24] While the jurisdiction of the District Court is far broader than that of the Local Court- encompassing, for instance, the power to grant equitable relief such as an injunction or the specific performance of a contract in addition to the power to award damages for the breach of common law rights- it has no jurisdiction beyond that granted it by statute.[25]
16 Parties to a civil claim before the Court can, if the subject-matter of the proceedings so permits, elect to enter the matter into one of the Court's specialist 'lists', including the Construction List, the Commercial List or the Motor Accidents List. Mirroring the practice of the Supreme Court (as discussed below), the rationale of dividing the Court's civil business in this manner is to provide for the more expeditious pre-trial management of proceedings on the assumption that actions with like subject-matters will often present like procedural needs. Construction litigation, for example, often involves lengthy lists of alleged structural and other building or design defects, and thus the District Court Rules make specific provision for the preparation and service of such documents (known as 'Scott Schedules') in a prescribed, readily understandable form.[26]
17 In broad terms, the civil jurisdiction of the Court includes the following:
(a) any common law claim for debt or damages (such as in negligence or for breach of contract) where the amount claimed does not exceed $750,000;[27]
(b) any motor accident or work injury damages action, irrespective of the amount claimed;[28]
(c) the power to grant and enforce any injunction in relation to any proceedings within its jurisdiction;[29]
(d) actions for possession of land the value of which does not exceed $20,000;[30]
(e) any proceedings for the specific performance, rectification, delivery up or cancellation of any agreement for the sale or purchase of any property of a value not exceeding $20,000;[31] and
(f) proceedings for the execution or declaration of subsistence of a trust where the property said to be impressed is of a value not exceeding $20,000.[32]
18 An appeal as of right lies to the Supreme Court against any judgment or order, although leave must be obtained in order to appeal against (amongst other things) interlocutory orders or summary or costs judgments.[33]
19 In respect of its criminal jurisdiction, the Court is responsible for dealing with the vast majority of prosecutions for all non-summary offences brought in New South Wales, and to this end is vested with jurisdiction in relation to all indictable offences with the exception of murder and the various offences[34] falling under the descriptive rubric of 'treason'.[35] A person convicted of an indictable offence may appeal to the Court of Criminal Appeal of the Supreme Court:
(a) as of right as against the conviction or sentence when the appeal is on a question of law alone;
(b) with leave as against the conviction or sentence is on a question of fact alone, or a mixed question of fact or law; or
(c) with leave as against the sentence alone.[36]
20 As with the Local Court, the District Court has the power to punish for contempt in the face or in the hearing of the Court, and may refer other allegations of contempt to the Supreme Court for determination.[37]
The Supreme Court of New South Wales
21 The Supreme Court is the superior court of record for the State of New South Wales, vested by virtue of s 23 of the Supreme Court Act 1970 with "all jurisdiction which may be necessary for the administration of justice" in that State. Since 1970 this jurisdiction has been administered concurrently in law and equity[38], and includes full powers to:
(a) grant forms of equitable relief including injunctions, specific performance or the appointment of a receiver;[39]
(b) make orders in the nature of prerogative writs,[40] which variously quash administrative actions on grounds including denial of natural justice or want of jurisdiction (the old writ of certiorari), compel or forbid the exercise of a public duty (the old writs of mandamus and prohibition) or order the release of a person from imprisonment (the writ of habeas corpus);
(c) make binding declarations of right;[41]
(d) punish for contempt, whether in the face of the court or otherwise;[42] and
(e) dispose of prosecutions for all indictable[43] and certain summary[44] offences, although in practice only the most serious of criminal matters come before the Court for determination.
22 Additionally, by virtue of its status as a superior court, the Court has the inherent power to, amongst other things, stay proceedings constituting an abuse of process, ensure that a criminal trial is conducted fairly, remedy breaches of natural justice or exercise control over parties or their legal representatives.
23 Under the Supreme Court Act, the Court is divided for convenience into three separate divisions, being the Court of Appeal, the Equity Division and the Common Law Division. Separate legislation creates an additional division known as the Court of Criminal Appeal.[45] Generally speaking, the business of the Court is assigned as follows:
(a) Common Law Division: The Common Law Division is responsible for the exercise of the Court's criminal jurisdiction, and handles much of the Court's caseload in respect of administrative law matters or claims for debt or damages in tort, contract or property. To this end, the Common Law Division is broken down into lists including the Administrative Law List, the Defamation List, the Property List and the Professional Negligence List.
(b) Equity Division: The work of the Equity Division is a hybrid of traditional, 'general equity' matters such as probate, trusts, adoptions and protections, and highly specialist commercial and corporate litigations. To this end, the Equity Division is broken down into lists including the Adoptions List, the Protective List, the Probate List, the Commercial List, the Technology and Construction List and the Corporations List.
(c) Court of Appeal: The Court of Appeal, constituted by the sitting of 3 or more judges[46], hears appeals from the Court's two trial divisions,[47] plus those from certain other lower courts (such as the District Court as described above).
(d) Court of Criminal Appeal: The Court of Criminal Appeal, constituted in the manner of the Court of Appeal by 3 or more judges sitting together,[48] hears criminal appeals from the Common Law Division,[49] plus appeals in respect of prosecutions for indictable offences from certain other courts (such as the District Court as described above).
24 Finally, it is a function of the Supreme Court to hear applications for the admission of individuals as legal practitioners in New South Wales.[50] Once so admitted, practitioners become subject to the inherent jurisdiction of the court to control its own officers, being a status which all practitioners attain upon admission.[51]
The High Court of Australia
25 At the apex of the New South Wales and Australian court structure sits the High Court, created by Chapter III of the Australian Constitution as the entity in which the judicial power of the Commonwealth ultimately vests. In addition to its original and appellate jurisdiction in respect of federal matters- concerning for instance the interpretation of the Constitution, Commonwealth laws or cases in which the Commonwealth is a party- the High Court has jurisdiction to hear and determine appeals from the Supreme Courts of any Australian State or Territory.[52] The effect of this latter jurisdiction is that the Court, unlike in other federations such as the United States[53], is the ultimate arbiter of a single Australian common law.
26 However, the Court is now mandated by legislation to only hear and determine appeals from State and Territory Supreme Courts when 'special leave' to do so has been granted to the parties by the Court.[54] When hearing applications for such leave, the Court must consider:[55]
(a) whether the appeal involves a question of law that is of "public importance";
(b) whether a resolution of the appeal would resolve differences between courts, or within one court, as to the state of the law;
(c) whether the "interests of the administration of justice" require the resolution of the appeal; and
(d) any other matter that the Court considers relevant.
Courts of Specialist Jurisdiction
27 Integrated into the basic three-court structure are a number of specialist courts whose jurisdiction is limited to specifically enumerated subject-matters. These courts are:
Land and Environment Court of New South Wales
28 The Land and Environment Court is a superior court of record constituted by and under the Land and Environment Court Act 1979 (NSW). The Court has such appellate and original jurisdiction as vested in it by that Act, relating to matters such as environmental planning and protection laws, local government legislation, land development regulation and environmental offences.[56]
The Industrial Relations Commission of New South Wales in Court Session
29 The Industrial Relations Commission of New South Wales, constituted by the Industrial Relations Act 1996 (NSW), is an administrative tribunal which exercises a range of non-judicial functions such as the setting of uniform terms and conditions of employment at an industry level, conciliating and arbitrating industrial disputes between employee and employer unions and overseeing processes of enterprise bargaining. Nonetheless a subsidiary entity is the Commission in Court Session, which is constituted as a superior court of record with jurisdiction in respect of more judicial matters such as the fairness of employment contracts or occupational health and safety prosecutions.[57]
The Drug Court
30 Constituted by the Drug Court Act 1998 (NSW), the function of the Drug Court is to assign drug dependent offenders, referred to it by other courts, to rehabilitation programs participation in which suspends the imposition of the offender's final sentence.
Court of Coal Mines Regulation
31 The Court of Coal Mines Regulation is constituted by a District Court judge appointed to that position pursuant to s 150 of the Coal Mines Regulation Act 1982 (NSW), and has jurisdiction to hear matters concerning breaches of coal mining safety legislation.
Licensing Court
32 The Licensing Court is a court of record with the responsibility of hearing and determining applications for, and objections to the granting or maintenance of, licenses to sell liquor.[58]
Children's Court
33 The Children's Court is a court of record[59] vested with jurisdiction under various statutes to deal with matters concerning both the care and protection of children, and criminal prosecutions concerning children.
The Appointment, Tenure and responsibilities of Judicial Officers
New South Wales Judges Generally
34 As detailed at the beginning of this paper, the maintenance of an independent judiciary absolutely free from political or other control on the part of the executive or other bases of social power is a critical feature of a society governed by the rule of law. In an individual sense (and as detailed in a previous paper, "Judicial Ethics [Paper 1]"), such independence is ultimately guaranteed by the personal dedication and intellectual honesty of each judge; such qualities, however, cannot be enshrined in legislation. However, more practical measures designed to minimise the possibilities of interference with the judicial function can, and thus legislation in all Australian States and Territories (and the Commonwealth Constitution at the federal level) makes provision for the formal appointment of judges to office, security of tenure and stability of remuneration.
35 Thus in New South Wales, all persons from the Supreme Court down to the Local Courts are appointed into judicial office by commission under the public seal of the State,[60] and are required as part of this process to swear or affirm the State oath of allegiance and the judicial oath.[61] During a judge's term in office, he or she enjoys:
(a) a fixed level of remuneration that cannot be reduced or derogated from during the term of the office;[62] and
(b) an immunity from suit in respect of acts done in the performance of judicial duties or in the performance of administrative duties intimately associated with those judicial duties.[63]
36 Similarly, while subject to a statutory retirement age of 72,[64] until such time judicial officers can only be removed by the New South Wales Governor (being the entity in which the executive power of the New South Wales Government is vested) on address from both houses of Parliament (this issue is discussed in further detail below). To like effect, while Parliament retains the power to abolish a judicial office by legislation- as would occur, for example, when a court is disbanded in favour of a new court structure- the person who held such office is entitled, without loss of remuneration, to be appointed to another judicial office of equivalent or higher status.[65]
Judicial accountability
37 While the proposition that the enjoyment of rights attracts the acceptance of responsibilities may appear in most respects to be self-evident, its application to the obligations undertaken by judges upon entry into office is far from straightforward. Certainly, security of tenure and remuneration are essential to ensure that judges are free to apply the law as its stands without fear of dismissal or starvation; but this is not to say that judges do not owe a duty to the citizenry they serve to exercise such powers, and enjoy such benefits, in accordance with certain acceptable standards of behaviour and conduct. As stated by the New South Wales Chief Justice:
"Such security of tenure is designed to ensure independence of the judiciary. However, security raises problems of its own. Judges cannot be readily disciplined or removed even if their performance is, in some respects, deficient. What can be done to ensure that, notwithstanding security of tenure, judges behave with the competence and integrity that is required of them? In Australia, this issue has come to be discussed in recent years in terms of the "accountability" of those who exercise government power, including those in the judicial branch of government."[66]
38 Indeed, absent a coherent theory of judicial accountability the rule of law is positively undermined; recall Dicey's second proposition, namely that no public official is exempt from the normal processes of the law.
39 Traditionally and primarily, judges are held accountable to the public through the requirements that, first, judicial decisions must only be made on the evidence presented by the parties, second, that such evidence be presented in public, open court and, third, that first-instance decisions are susceptible to appellate review. Coupled with the obligation to provide reasons, it is therefore impossible for a judge in the common law system to discharge his or her judicial function in a manner that is not open to general scrutiny. Nonetheless, while these requirements continue to lie at the heart of judicial accountability, in recent decades in Australia and elsewhere they have become to be seen as inadequate, in and of themselves, as means of ensuring that judges remain responsive to the communities in which they work. This is as much a matter of demonstrating the presence of such accountability to the citizenry and opening up the judiciary to public inspection as it is about improving actual standards; as recently stated by Justice Michael Kirby of the High Court of Australia:
"The old belief that the judiciary was beyond criticism, both as to its work and personnel, has given way, in many countries, to a serious desire, not least from the judiciary itself, to ensure that appropriate levels of performance are reached, that continuing education outside the courtroom is accepted, that minimum standards of diligence, competence and ethical conduct are upheld and that all of this is demonstrated to the community whom the judges serve."[67]
40 Accordingly, new and more formalised mechanisms of accountability have emerged, of which this paper intends to analyse two; namely, judicial education and judicial complaints handling processes.
Judicial Education
41 As recently explained by Justice Kenny of the Federal Court of Australia, the concept of judicial education is of relatively recent origin in that:
"Traditionally, newly-appointed judges have not undertaken any special course of judicial studies to equip them for judicial life. Since they were previously practising lawyers, usually with considerable courtroom experience as advocates, it was assumed that they could assume the responsibilities of judicial office without further education."[68]
42 In this context, the focus is as much on acceptable standards of conduct in the face of the multitude of social mores and attitudes which the newly appointed judge will encounter during his or her career on the bench as it is on substantive law or court procedures- it being a virtual certainty that a judge's career as a legal practitioner would provide an ideal preparative background in this respect. It is this social and cultural sense, in addition to the legal or professional, that the newly emerged judicial education programs have great relevance to the matter of accountability. As recently stated by Justice Keith Mason, the President of the New South Wales Court of Appeal, "it is men and women enjoying judicial independence who administer justice, not automata or computers";[69] thus as men and women, judges too can suffer from what His Honour calls 'unconscious judicial prejudice' in a manner that impedes that other great characteristic of the rule of law, the impartial application of legal principles.
43 In Australia, the issue of judicial education is now squarely on both the national and State governmental agendas. In New South Wales, an organisation called the Judicial Commission has since its establishment in 1986 been responsible for, amongst other things, the organisation and supervision of schemes for the continuing education and training of judicial officers.[70] The Commission offers a range of induction and continuing education programs for new and continuing judicial officers, and publishes a series of 'Bench Books' to be used as practice and procedure manuals; thus the 'Criminal Trial Courts Bench Book' is provided to Supreme and District Court judges hearing criminal matters, and contains suggested directions to be used in instructing juries on the law and the facts when they are retiring to consider their verdict. Additionally, more topical areas of discussion include seminar and information sessions on sentencing Indigenous offenders and relationships with Indigenous communities generally, dealing with self-represented litigants and sensitive aspects of criminal law such as sexual assault.[71]
44 Likewise at the federal level, in 2002 the National Judicial College of Australia commenced operation as a full-time educational unit, attached to the Australian National University in Canberra, with the goal of co-ordinating judicial education at the national level. A key feature of the College is its direct governance by current and former judicial officers, designed with a view to providing an opportunity for experienced judges to share their experiences and knowledge with their younger colleagues and, in turn, for such younger judges to introduce new concepts and methodologies to those more experienced. As stated by Chief Justice Doyle at the opening of the College:
"judicial officers tend to occupy judicial office for fairly lengthy periods. This is in the public interest. It takes time to develop fully the skills required of a judicial officer, and it is in the public interest that those who have fully developed those skills put them to the public benefit for as long as possible. The fact that judicial officers hold office for substantial periods of time mean that they are likely to benefit from programmes of professional development that reinvigorate, refresh and enthuse."[72]
Formalised Complaints-Handing Processes
45 Although exceptionally utilised, the procedure for removing a New South Wales judicial officer from his or her position is well settled. As dictated by s 53(2) of the Constitution Act 1902:
"The holder of a judicial office can be removed from the office by the Governor, on an address from both Houses of Parliament in the same session, seeking the removal on the ground of proved misbehaviour or incapacity."[73]
46 In more prosaic terms, this means that a judicial officer can only be removed by an executive order, prompted by a resolution of a joint sitting of both Houses of Parliament, to the effect that the officer in question has been guilty of such misbehaviour, or is of such incapacity, that the circumstances justify his or her removal from office. In the interests of judicial independence these requirements are, of course, justifiably strict.
47 The issue that has emerged in recent decades, however, is that traditionally there have been no established avenues for dealing with either, first, complaints against judicial officers of such potential seriousness as to justify removal or, second, the expression of lesser concerns which, although falling short of removal, might nonetheless justify some alternative form of sanction. The lack of such formal procedures might be said to result in great unfairness to the judicial officer in question in the first instance, and to the aggrieved member of the public in the second. Alternatively expressed, the perception was that while there may have been a form of accountability for the most grave forms of judicial misbehaviour or incapacity, there was no judicial equivalent of a 'complaints department' to which lesser (but nonetheless significant) grievances could be directed.
48 Accordingly, upon its establishment the Judicial Commission of New South Wales was accorded the additional function of receiving, assessing and classifying complaints against the State's judicial officers, both 'serious' and 'minor'.[74] The procedure which the Commission must follow in such instances, which is unique amongst the various Australian jurisdictions and in many respects the common law world more generally, is as follows:
(a) Any person is entitled to complain to the Commission about a "matter that concerns or may concern the ability or behaviour of a judicial officer." The Commission will then move to deal with the compliant if it appears that, if substantiated, it could either justify the removal of the officer or affect the performance of his or her duties.[75]
(b) A complaint will be summarily dismissed at this point if, amongst other things, it is frivolous, vexatious or trivial, it occurred at too remote a time to justify further consideration, it relates to a matter in respect of which appeal rights exist or the person complained about is no longer a judicial officer.[76]
(c) Complaints not dismissed are classified as either 'minor' or 'serious', and are referred to a Conduct Division of the Commission for further investigation.[77] Critically, the Conduct Division is comprised of either serving or former judicial officers in view of the need to keep such a process separate from external influence.[78]
(d) The Conduct Division may then hold a hearing in connection with a serious complaint- minor complaints can be referred to the relevant head of jurisdiction (such as the Chief Justice of the Supreme Court or the Chief Judge of the District Court) for internal action- which must ordinarily be in public and at which the judicial officer concerned has a right to legal representation.[79]
(e) If, following the hearing, the Conduct Division is of the opinion that the complaint is either wholly or substantially justified, then a report to the Governor in relation to the complaint must be prepared for the purpose of the Attorney-General laying it before a joint sitting of Parliament convened to decide whether the judicial officer should be removed.[80]
49 It is perhaps important to emphasise that the utilisation of this procedure is, particularly in respect of serious complaints potentially justifying the removal of a judicial officer, exceedingly rare. Nonetheless, its existence (in combination with other means of accountability such as public hearings, the obligation to give reasons and judicial education programs) ensures that the New South Wales judiciary both is and appears to be accountable to the public which it serves. This, without simultaneously derogating from the necessary independence and security of tenure of judges, then further ensures that the modern judiciary continues to abide by the underlying dictates of the rule of law so fundamental to the survival of an open society.
The Position of Acting Judges
50 In New South Wales the capacity for 'acting' judges to be appointed to temporary judicial office is provided for by legislation applicable to the Supreme Court all the way down to the Local Courts. Taking the Supreme Court as an example, to be eligible for appointment to acting office a person must either be eligible for appointment as a permanent judge (requiring no less than 7 years experience as a legal practitioner[81]) or be a current or former member of the Federal Court of Australia or the Supreme Court of another State or Territory.[82] A temporary commission cannot be more than of 12 months duration, during which time the acting officer is entitled to a guaranteed judicial salary in the manner of permanent appointees.[83] Additionally, he or she cannot be removed- other than by the natural expiration of the fixed term- other than in accordance with the constitutional procedure applicable to permanent judicial officers.[84]
51 Currently in the Supreme Court, this procedure has been utilised to appoint 7 presently serving acting judges and acting judges of appeal, 6 of whom are retired judicial officers of either the Federal Court or the Supreme Court itself.
52 The principal rationale behind acting judicial appointments is that it provides courts with a flexible means of effectively responding to caseload fluctuations so as to keep delays and backlogs to a minimum. Thus in recent years the system has developed into a settled feature of the New South Wales judiciary, whereas traditionally it was used primarily as a means of filling short-term vacancies arising between the retirement of one permanent judge and the appointment of another. Certainly, given the preponderance of former judges amongst those appointed, the abilities and dedication of those appointed to temporary office is beyond doubt. Moreover the concept is hardly unique in the common law world, with the English Lord Chancellor long having had the power to appoint practitioners, recorders and circuit judges to sit as part time judges of the English High Court;[85] indeed as at March 2003, some 184 practitioners were authorised to occupy such a position.[86] Interestingly, in a consultation paper released in 2003 the United Kingdom Department for Constitutional Affairs mooted as a benefit of the temporary appointments system the ability of practitioners to experience judicial life for a short period of time as an aid to determining whether they would be inclined to later seek permanent judicial office.[87]
53 Nonetheless, and despite the well-intentioned nature of the temporary appointments system- responding as it does to the public interest in the rapid disposal of litigation- a number of criticisms have emerged regarding the entrenchment of the system as a permanent feature of the administration of justice. First, and as expressed by Justice Kirby:
"Papering over problems of judicial administration by the use and expansion of exceptional devices such as acting appointments is no real alternative to the proper funding of a judiciary of adequate numbers and greater accountability, transparency and efficiency on the part of permanent judges."[88]
54 The gist of this concern, in other words, is that temporary appointments are an inexpensive means for governments to be seen to be tackling the serious problem of delayed justice, without expending the time and effort required to properly equip the permanent judiciary with the resources and support staff required to be able to address the problem itself.
55 Second, and although acting judicial officers cannot be removed before the expiry of their term other than in the manner of their permanent colleagues, the system is seen as undermining the fundamental principle, discussed at length above, of the independence of the judiciary. While they cannot be readily removed during their term, it always remains open for the executive to decline to re-appoint an acting judicial officer should it be politically dissatisfied with his or her decisions during the temporary term. As stated in 1997 by the then President of the New South Wales Bar Association (and now Commonwealth Solicitor-General), Mr David Bennett QC:
"It is an essential feature of an independent judiciary that judges are appointed for life (or at least until retirement). This guarantees that they are beholden to no-one. The existence of acting judges challenges this basic principle."[89]
56 Third, when the acting judicial officer must also maintain a career beyond the bench there exists the possibility that the quality of justice dispensed by the courts is at risk. As stated by Mr Robert Gotterson QC:
"Part-time acting judges have to juggle judicial duties with their responsibilities as practising barristers, solicitors or as academics with a lecturing workload. Practising lawyers must keep their practices running. This is a day to day distraction for part-timers on the bench. As well, they have little or no administrative support at court level. They cannot deliver the quality of justice we must expect from all our courts no matter what the jurisdiction."[90]
57 Of course, given the tendency to appoint retired judges rather than practitioners or legal academics to the Supreme Court bench, this is a concern more applicable to the position of acting judges in inferior courts.
58 And, finally, the concept of acting judges liable to more than one temporary appointment or drawn from broader professional ranks might be said to give rise to a reasonable apprehension of partiality; although this is, of course, not to advance any accusation of actual bias on the part of any appointee. Rather, the issue is that of the erosion of the appearance of judicial independence in an objective sense as opposed to any allegation of bias in a subjective sense. Taking the example of a barrister serving a term as an acting judge, might it be said that he or she could be potentially influenced to extend preferential treatment to a firm of solicitors from which he or she normally receives briefs- even on a subconscious level? As detailed in an earlier paper, "Judicial Ethics [Paper No. 1]", that the judiciary be free from any reasonable apprehension of bias is as important as it being free of any actual bias.
59 Accordingly, the question of the propriety of the temporary appointments system is a delicate and vigorously debated one; against the clear public interest in reducing court delays stand very legitimate concerns regarding the effect of the system on judicial independence. Nonetheless it must be recognised that until such time as the judiciary manages to secure adequate resources to deal with increasing caseloads without the need for temporary appointments, the phenomena is a practical issue that must be addressed by practical solutions. To this effect the Chief Justice of Australia, The Hon Murray Gleeson, has said:
"Having lawyers in private practice who are former judges, and having people who move back and forth between the Bench and legal practice, has presented the judiciary, and the profession, with some issues that have had to be addressed. Those issues are not peculiar to Australia. Other common law jurisdictions have had to deal with them. It will be necessary for the judiciary and the profession to develop some common rules of professional conduct. To an extent, this process is already in train but more effective cooperation may be necessary."[91]
60 One proposal for reform to the existing system might be to devise and impose some form of professional obligation upon former acting judges to not appear as counsel, for a limited period of time, before the court of which they were former temporary members. Presently the New South Wales Barristers Rules make provision to this effect in respect of former permanent members of the courts of this State, but temporary appointees are specifically excluded from these requirements.[92]
Judges in the Lower Courts
A changing magistracy
61 At present in New South Wales it is beyond doubt that the judges of the Local Courts, known for reasons of tradition as 'magistrates', are extended an official judicial status wholly equivalent to that of their colleagues in the higher courts. Specifically, the provisions of the Judicial Officers Act relating to retirement, immunity from suit and access to the Judicial Commission's complaints-handling process all apply to magistrates, as does the procedure in the Constitution Act as to the removal of judges by the Governor on address from Parliament. Equally, magistrates' remuneration is fixed and cannot be derogated from in exactly the same manner as, say, the President of the Court of Appeal or the Chief Justice of the State.
62 Such equality of treatment and position is plainly warranted; despite the matters with which they deal too often being described, inaccurately, as 'minor', lower court judges in Australia and elsewhere play a critical and undervalued role in the administration of justice. As once stated by a former Chief Justice of Australia, Sir Anthony Mason:
"Why is it that law journals, as well as newspapers, devote so much space to the High Court and so little space to the Magistrates' Courts? The High Court is predominantly a forum for the resolution of institutional conflicts to which governments, statutory authorities, corporations and trade unions are parties. The Magistrates' Courts dispense justice at the grass-roots- a function of vital importance in a democracy and one deserving the closest scrutiny."[93]
63 It is for this very reason- being the sheer proximity of the lower courts to the everyday affairs of individuals rather than institutions- that the name 'Local Courts' was devised in 1982 to replace the old 'Court of Petty Sessions.' Given the connotations of the former with what Sir Anthony calls 'grass roots' justice, the idea was to present the lower courts as an institution closely connected to, and receptive to ideas from, the local communities which they serve.[94] Moreover, by according full judicial status to magistrates and placing their courts squarely within a defined and logical court structure- Local, District and Supreme- the idea is to project to the broader community the idea that the justice dispensed in the lower courts is, far from being 'trivial', of no lesser quality than that accorded institutional litigants in the higher courts. The benefits of the rule of law and a fully independent judiciary, after all, must apply to all in a like manner.
64 Such a recognition of the pivotal role of the lower courts in New South Wales has, however, not always been the case. For the vast majority of the State's history, magistrates were not judicial officers but, rather, mere public servants employed by and drawn from the ordinary ranks of the Justice Department; indeed, symbolising this unhealthy closeness to the executive government, it was not until the 1940s that the name 'Court of Petty Sessions' replaced the previous 'Police Courts' (presided over, of course, by 'Police Magistrates').[95] Salaries rose and fell in the same manner as the ordinary public service, and magistrates came under the direct control of senior bureaucrats subject only to a departmental convention that no directions should be given as to the conduct of, or decisions to be made in, court proceedings. Perhaps most remarkably of all, it was not until 1955 that magistrates were required to have formal legal education and training.[96]
65 In discussing the great changes that have occurred in the New South Wales magistracy in the last twenty years, Chief Justice Gleeson has recalled his early years in practice and the status of the lower courts at that time as follows:
"In 1963, when I entered the legal profession, as today, the judicial officers with whom lawyers and the public had most contact were magistrates. There were no Federal Magistrates. State magistrates were members of the Public Service. In New South Wales, they were appointed by the Public Service Board. Most of them had entered the Public Service at an early age, were appointed to the Bench as part of a career path, and remained there until retirement, at the age of 60 or earlier ... Their remuneration and salary arrangements were the same as other public servants. Their salaries varied according to how they were graded, and they were graded by executive government. They were part of the government bureaucracy."[97]
66 Similarly, Justice Kirby has reflected upon the magistrates of his youth in terms of their apparent closeness to police prosecutors and the resultant image of the lower courts as both staffed and presided over by mere government officials whose function it was to process cases rather than administer justice:
"40 years ago the magistrates of Australia were, for the most part, recruited from amongst the clerks of petty sessions. Their career path was normally wholly within the Executive Government. Most had spent their entire lives in the Courts of Petty Sessions, working cheek-by-jowl with the police prosecutors, who were effectively part of their court team. This was a low-cost, but socially effective, system of processing big jurisdiction case loads through courts where public legal aid was virtually unknown."[98]
67 This is, of course, not to generate blanket aspersions as to the quality and abilities of New South Wales magistrates of the last century. Rather, it is to make a structural observation of the prior perception of lower courts as places where the full rigours of the rule of law and its necessary attendants- such as an independent judiciary- need not apply. When compared to the present situation, therefore, the irresistible implication is that the disputes of magistrates' court litigants were simply not considered worthy of the full and impartial judicial consideration said to be the very epitome of a society governed by the rule of law.
68 One example will, perhaps, suffice. In 1957 the lessor of an apartment building in Sydney applied to the then Fair Rents Board, constituted by a magistrate, for an order permitting an increase in the rate of rent she was permitted to charge her tenants. The lessor was represented by her husband, who was in fact a close personal friend of the magistrate constituting the Board; indeed, shortly before the first hearing of the matter, the two were seen out dining together. Accordingly, both the parties and the magistrate concerned were all in agreement that it would be inappropriate for the latter to hear the case on the very reasonable ground of apprehended bias. Upon the search for a replacement proving unsuccessful, however, the magistrate was ordered by the Under-Secretary of the Justice Department, in a manner directly contrary to established convention, to go ahead and hear the matter.
69 In response the tenant parties sought judicial review in the Supreme Court of the decision to have the magistrate sit on the ground of denial of natural justice, a submission which the Court accepted. In the course of its reasons, while the Court noted that magistrates were mere public servants whose independence from executive government was a matter of custom rather than rule, the undeniably judicial nature of their function was underscored in that:
"A stipendiary magistrate who exercises the powers of a Board sits as a judicial tribunal and may have to determine many matters of fact pout forward by the parties. He is required also to have regard to the justice and merits of the case and to the circumstances and condition of the parties."[99]
70 Accordingly while the ultimate outcome of the case was that the magistrate did not sit, that it could even arise suggested to the public that, in the case of the lower courts, "administrative exigencies could over-ride judicial autonomy, which was sustained only by convention."[100]
71 The transition to the present situation finally came in 1985 with the entry into force of the Local Courts Act which, as one aspect of a wholesale review of the lower courts of New South Wales, broke the nexus between the magistracy and the public service by creating the independent statutory office of Chief Magistrate as an entity with sole administrative responsibility over the new Local Court. One year later the enactment of the Judicial Officers Act confirmed this shift by rendering magistrates 'judicial officers' for all purposes of statutory tenure and remuneration. As observed at the time by Justice Priestley of the Court of Appeal, one of the purposes of the new regime "was to make the position of magistrates and the courts in which they sat resemble more closely that of judges and courts generally";[101] Parliament, it was said, was "endeavouring to improve the standard of the magistracy."[102] Indeed it was not until April of this year, 2004, that this process was completed, with the manner of address for magistrates in court being changed from the traditional 'Your Worship' to the general 'Your Honour';[103] exactly in accordance with that of their colleagues in superior courts above.
Persistent Challenges
72 Despite victory in their hard fought battle for recognition as full judicial officers, however, it remains the case that magistrates in New South Wales- much like, it is assumed, lower court judges everywhere- face incredible difficulties on a daily basis that are simply not present in courts higher up the judicial structure. Changes in status notwithstanding, it remains the case that magistrates continue to labour under the "contradictory demands" of productivity- the imperative of pushing through a staggering caseload- and fairness- the need to afford due process to all those who come before the courts.[104]
73 The challenge facing lower court judges is, therefore, how to prevent their courts from becoming mere 'system[s] of processing big jurisdiction case loads' without creating inexorable delays and backlogs. While a failure to attend sufficiently to each individual case does not befit the judicial function, it is equally true that justice delayed is justice denied. Moreover this tension is compounded in common law jurisdictions such as Australia where, as discussed above, it is a basal element of the judicial role to remain passive, allow the parties to present their evidence and then decide the merits of the case only upon the material so presented. To adopt an active, inquiring approach as a means of hastening the enumeration of the real issues in dispute is, at least on the face of it, completely inimical to this role.
74 Thus within this framework of discussion, examined will be what are arguably the two most chronic problems confronting the maintenance of judicial independence and detachment in Australian lower courts- but, again, presumably in other jurisdictions as well- and some suggested means of overcoming such difficulties. In order of treatment, they are caseflow management and unrepresented litigants.
Caseflow Management
75 Authority for the oft-cited proposition that the lower courts are responsible for the vast majority of the business of the judiciary is readily found in even the most cursory glance at the statistics. The New South Wales Local Court, for instance, is by good measure the largest and busiest court in the Commonwealth of Australia, in which some 427,329 new civil, criminal, children's and family law matters were commenced in 2003 alone. At the conclusion of that same year, and despite upwardly trending disposal rates, approximately 29,000 matters remained pending before the court.[105]
76 By way of contrast, a mere 12,947 matters were commenced in the Supreme Court in 2003; and this notwithstanding the fact that the New South Wales Supreme Court is easily the largest of all the various State and Territory Supreme Courts in Australia. Moreover it is important to note that this figure, while excluding non-contentious probate matters, is inclusive of proceedings as minor as criminal bail applications. Similarly, in the same year the Court of Appeal and Court of Criminal Appeal combined heard some 1,353 appeals or applications for leave to appeal.[106]
77 To be sure, the caseload of the Supreme Court and Court of Appeal is generally of a far greater length and complexity than that faced by magistrates in the lower courts, but this is not to say that the work of the latter can in any way be dismissed as merely 'trivial.' It will be recalled, that is to say, that the Local Court has jurisdiction to hear civil claims for the recovery of any debt, demand or damage up to the value of $60,000, or some 355, 049 Yuan Renminbi. Given that the average annual income of a full-time adult Australian worker, based on a weekly salary of $952.50, is in the order of $49,500, it is clear that many in the community would be hesitant to consider such a sum to be trivial or minor.[107] Equally, trying and/or sentencing an individual for an indictable offence- involving a potential sanction of anything up to life imprisonment- requires a magistrate to exercise his or her judicial discretion in the most serious of circumstances. And, finally, there is the substantial social and governmental responsibility borne by local court judges; whereas litigants in the superior courts are likely to be large, repeat legal players, those in the Local Courts will in all probability be individuals dealing with unfamiliar and intimidating surroundings. Their experiences therein, and in particular the work of the presiding magistrate and other court staff, are very likely to determine their attitude to the justice system at large
78 The response of the Local Court to its sizeable caseload has been to develop, at least in its civil jurisdiction, a number of procedural ingenuities designed to facilitate the rapid identification of the real issues in dispute between the parties.
79 As discussed above, the Local Court has divided its civil jurisdiction into two distinct groups, namely the General Division and the Small Claims Division, with the latter only handling matters in which the amount in dispute does not exceed $10,000 (or some 59,160 Yuan Renminbi). While the procedure of the General Division is little different from that of the District and Supreme Courts above, in the Small Claims Division the image of the disinterested common law judge has been radically altered in favour of a more interventionist approach. First, the jurisdiction of the Court sitting in its Small Claims Division can be exercised by either a magistrate or an 'assessor.'[108] Appointed under legislation for a designated period (not exceeding 7 years), assessors are barristers or solicitors whose function it is to assist the magistracy with the disposal of the most minor of civil matters. While assessors have lesser security of tenure than judicial officers- they can be dismissed by the executive government for incapacity of misbehaviour- their remuneration is not bound to that of the public service generally and they are ultimately responsible to the Chief Magistrate.[109]
80 Second, before any Small Claims matter comes on for hearing the parties must attend a 'pre-trial review' before a magistrate or assessor. At the review, it is the function of the presiding officer:
(a) to use his or her best endeavours to identify the real issues in dispute and to bring the parties to a settlement;
(b) to consider whether the parties should be referred to a community justice centre for a non-litigious resolution of the matter; and
(c) if settlement or referral is impossible, to consider the preparations the parties have made for trial and to "give to the parties such advice concerning those preparations as seems reasonably necessary to ensure that a fair and quick trial of the action can be completed."[110]
81 And, third, if a Small Claims action does proceed to trial the presiding magistrate or assessor must conduct the proceedings "with as little formality and technicality as the proper consideration of the matter permits." Vitally in this respect, the very technical rules of evidence that ordinarily apply in court proceedings have no application, and the magistrate or assessor may inform him or herself on any matter or issue relating to the action as he or she thinks fit.[111] Similarly, no order or judgment can be made in the Small Claims Division unless the assessor or magistrate "has brought, or has used his best endeavours to bring, the parties to the action to a settlement acceptable to the parties."[112]
82 A further trend in Local Court case management has been to vest a number of minor judicial and quasi-judicial functions in certain court officials- known as 'registrars' or, previously, 'clerks of the court'- with the intention of freeing judicial time to deal with more complex issues. Thus a registrar may constitute a Local Court for a variety of purposes, including for the adjournment of proceedings, the issue and return of subpoenas, the making of consent orders or the fixing of dates for the service of documents.[113] In respect of case management procedures specifically, registrars may make orders as to, amongst other things, the setting down of a timetable to bring a matter to hearing, the preparation and filing of statements of agreed facts and issues, the preparation of lists of evidence and the filing of written submissions on points of law in contention.[114]
83 At first glance, the development of such procedural innovations appears incompatible with the party-driven system of civil litigation so long said to be the cornerstone of the rule of law and the independence of the judiciary in the common law world. Certainly, these procedures have inevitably led to a derogation from the classic model of the passive judge; the notion that the magistrate (or assessor) should give 'advice' to parties as to how to conduct their case at hearing is indeed completely alien to the archetypal, exclusively adjudicatory model of the judicial function. However in adopting such change the lower courts are by no means alone. In discussing the evolving role of the common law judge, Chief Justice Gleeson has said:
"The pressure of business before the courts, and the necessity to respond to demands for judicial involvement in case management, has resulted in the acceptance by judges of responsibilities of a kind their predecessors never acknowledged. Forty, and even 15, years ago, it was not regarded as part of the role of a judge to manage the progress of cases towards readiness for trial, and judges were discouraged from undue intervention in the progress of cases during trial ... Things are different now. Courts are expected to manage their lists actively, and trial judges are expected to adopt a role most of their predecessors would have regarded as inappropriately interventionist."[115]
84 For obvious reasons, the caseload pressures of lower courts such as the Local Court make such modifications to the traditional approach even more critical if such courts are to continue to effectively service the community. Rather than the strict maintenance of the 'passive judge' model, what remains essential is the independence of the judiciary from outside control or influence; especially so considering the more active role that lower court judges (in particular) now play in the management of the cases that come before them. Whereas the former is in many respects a product of history that must be adapted to fit contemporary reality, the latter is unquestionably the essential key to the maintenance of the rule of law. While concerns may be legitimately expressed that a 'managerial' or 'interventionist' approach has the potential to tarnish judicial independence by rendering the judge an active participant in litigation, the concurrent development of new and more formal means of judicial accountability, as discussed above, goes a long way to ensuring that the new style of judging will remain as impartial as the old.
85 Of course, this is not to say that lower courts judges should abandon completely the traditional approach by, for example, directing the parties as to what evidence should be presented at hearing or forcing them into a non-consensual settlement. What it does mean, however, is that in striking that perpetual balance between productivity and fairness, lower court judges must be prepared to undertake a role that is, in many respects, vastly different to that of their predecessors.
Unrepresented Litigants
86 Returning again to the model of the detached common law judge, Chief Justice Gleeson has observed that:
"The adversary system assumes, in the interests of both justice and efficiency, that cases will be presented to courts by skilled professionals. To the extent which that assumption breaks down, so does the system."[116]
87 Specifically, the common law is replete with procedural and evidentiary rules that are designed to protect the parties, in the interests of fairness, from the finder of fact having to consider material that is unduly prejudicial to a party or, alternatively, to come to a decision based on material that is incomplete. Objection may be taken, for instance, to the reception into evidence of statements or confessions allegedly made out of court on the basis that the other party does not have the opportunity to test the truthfulness of such assertions in cross-examination. Alternatively, parties may request the court to compel a person (whether a party to the proceedings or not) to attend court to give evidence or to produce documents or other physical evidence relevant to the matter.
88 The common element of all such rules and procedures is that they are not self-enforcing, arising only when one party or another moves the court for their application. The 'breaking down' of the adversary system in the absence of legal representation, therefore, arises because the unrepresented litigant is often unaware of the existence of such procedures and is, consequentially, wholly deprived of their benefit. Thus potentially inadmissible evidence may come in due to a failure to object to it, or potentially relevant evidence may stay out due to a failure to seek orders for its production. The question then becomes; to what extent is the trial judge permitted to adopt a 'managerial' role at the hearing stage of proceedings so as to lend a 'helping hand' to unrepresented litigants? (As compared, of course, to the adoption of such an approach at the pre-trial stage to ensure the efficient disposal of heavy caseloads.)
89 Again, it is plain that the structural difficulties presented the adversarial system by unrepresented litigants are felt most acutely at the lower court level. According to a recent assessment by the Law Society of New South Wales, in excess of 46 percent of litigants coming before the Local Courts are unrepresented.[117] Moreover, this figure does not take into account the volume of litigants represented by solicitors or counsel brought in at the last moment on public funds with a relatively scant knowledge of the proceedings or the parties.
90 As a matter of course the common law has shown little sympathy for parties labouring through the court system without professional assistance; in one prominent case, the English House of Lords described a decision made on incomplete evidence as merely 'unsatisfactory' rather than 'unfair', and laid the blame squarely on the parties for the deficiencies of the case.[118] The primary concern, rather, has long been on the maintenance by the trial judge of the strict degree of detachment and passivity required of a common law judicial officer. As stated in one case:
"A judge who observes the demeanour of the witnesses while they are being examined by counsel has from his detached position a more favourable opportunity of forming a just appreciation than a judge who himself conducts the examination. If he takes the latter course he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of conflict."[119]
91 Alternatively expressed, the general rule is that even if the parties do not present a full and complete case or fail to utilise the protections available to them, it is not for the judge on his or her motion to go 'in search of justice.'[120]
92 Ideally, of course, sufficient public and private funds would be available to procure representation for all litigants, such that the judge could indeed occupy that ideal, detached role of common law theory. But the reality, and in particular the lower court reality, is much different. In all those cases in which a party or parties appear unrepresented, the lower court judge must inevitably take the necessary steps to ensure that the logical conclusion of the traditional approach does not come about; namely, that a meritorious case is lost merely because a party could not afford legal representation, or the amount in dispute was not sufficient to justify same. Such an outcome would indeed be a "high price to pay" for the maintenance of an approach whose validity rests wholly on an assumption that is far removed from the all too common lower court experience.[121]
93 The extent of the trial judge's assistance to the unrepresented litigant must at all times be tempered by the recognition that his or her intervention can never serve as a proper substitute for the role of counsel. While the judge can, and in some circumstances must, attempt to lend a "helping hand", as a complete substitute for counsel, this is "inadequate for the same reason that self-representation is generally inadequate: a trial judge and a defence counsel have such different functions that any attempt by the judge to fulfil the role of the latter is bound to cause problems."[122] As stated by the late Justice Murphy of the High Court:
"A judge's assistance to an unrepresented accused does not make up for lack of counsel. In an adversary system, it is not his function to assist one party. An attempt to do so generally serves only to gloss over procedural injustice; how can a judge assist effectively without having conferred with the accused and his witnesses in circumstances in which the accused has the protection of the confidentiality rule?"[123]
94 The propriety of any intervention must be considered in light of the paramount obligation that the judge remain independent of the parties and impartial with respect to their respective cases. As expressed by the former Justice Fox of the Federal Court:
"Not only does the fact that an accused is unrepresented resent difficulties for himself at his trial, it also does so for the court, in a number of ways. One problem is that by the time the trial judge does all that is required of him to protect the accused's position, he is in grave danger of appearing partial."[124]
95 This proposition must be read in conjunction with that above, in that the function of the trial judge is inherently (and rightly) very different to that of counsel. Accordingly, the provision of advice to an unrepresented litigant as to how to conduct his or her case would be completely unacceptable.[125]
96 Ordinarily the extent of a judge's assistance must be limited to informing unrepresented litigants of their rights, rather than assisting with the exercise of such rights. To adopt, as one judge has, the analogy of a game: "In such a case as this I regard myself as a referee. I can blow my judicial whistle when the ball goes out of play; but when the game restarts I must neither take part in it nor tell the players how to play."[126]
Concluding remarks
97 It has been the purpose of this paper to demonstrate, through an analysis of the New South Wales judiciary and court structure specifically, that while the maintenance of such personal qualities in judges is essential, it is only through the development of appropriate governmental structures to support the judiciary that the rule of law can be truly maintained. The faithful and dutiful judge, while admirable, is hopelessly emasculated if the independence of the judicial branch of government is not upheld.
98 There must be a structured and clearly defined court hierarchy with rights of appeal, in appropriate circumstances, existing as of right. Judges must be fully independent from the executive government and other sources of potential influence, with security of tenure and guaranteed incomes. There must be formal and identifiable mechanisms of judicial accountability to the community, both directly through complaints-handling and removal processes and indirectly through the availability of programs of judicial education.
99
Sir Gerard Brennan, a former Chief Justice of Australia, has said:
"A judge's role is to serve the community in the pivotal role of administering justice according to law. Your office gives you that opportunity and that is a duty. No doubt there were a number of other reasons, personal and professional, for accepting appointment, but the judge will not succeed and will not find satisfaction in his or her duties unless there is a continual realisation of the importance of the community service that is rendered. Freedom, peace, order and good government - the essentials of the society which we treasure- depend in the ultimate analysis on the faithful performance of judicial duty. It is only when the community has confidence in the integrity and capacity of the judiciary that the society is governed by the rule of law."[127]
* Paper delivered 11-13 October 2004 to the National Judicial College, Beijing
** Justice of the Supreme Court of New South Wales
I acknowledge the assistance of the Commercial List researcher, Mr Alexander Phipps, BA (Hons) LLB (Hons) in preparing this paper
1 A.V. Dicey, Introduction to the Study of the Law of the Constitution, Tenth Edition, MacMillan & Sons, London, 1959, page 188.
2 Ibid., 193.
3 Ibid., 195-6.
4 Justice Bruce Debelle, "Judicial Independence and the Rule of Law" (2001) 75 Australian Law Journal 556 at 558.
5 See the attached diagram for a pictorial representation.
6 Local Courts Act 1982 Part 3.
7 Local Court of New South Wales, Annual Review 2003, page 6. (www.lawlink.nsw.gov.au/lc.nsf/pages/reps_papers)
8 Local Courts (Civil Claims) Act 1970 s 6.
9 Local Courts (Civil Claims) Act 1970 ss 12 (1) and (2).
10 Local Courts (Civil Claims) Act 1970 ss 12(3) and (4).
11 Local Courts (Civil Claims) Act 1970 s 21L.
12 Local Courts (Civil Claims) Act 1970 ss 69(2) and (2A).
13 Local Courts (Civil Claims) Act 1970 s 69(3).
14 Criminal Procedure Act 1986 (NSW) s 6(1)(c).
15 Criminal Procedure Act 1986 Chapter 5.
16 Criminal Procedure Act 1986 s 55.
17 Criminal Procedure Act 1986 s 65.
18 Criminal Procedure Act 1986 s 66.
19 Crimes (Local Courts Appeal and Review) Act 2001 (NSW) s 11.
20 Crimes (Local Courts Appeal and Review) Act 2001 (NSW) s 52.
21 Crimes (Local Courts Appeal and Review) Act 2001 (NSW) s 31.
22 Local Court Act 1982 ss 27A and 27B.
23 District Court Act 1973 s 11.
24 While the trial of indictable offences in either the District or Supreme Courts is, as a general rule, by jury, the accused has a right to waive a jury trial and have the matter thereby determined by a judge sitting alone: Criminal Procedure Act 1986 ss 131-2. Trial by jury in the District Court's civil jurisdiction is extremely rare, occurring only when the Court is of the opinion that the "interests of justice" require it or the matter is a claim for defamation: District Court Act 1973 ss 76A and 76B.
25 Palmer v Clarke (1989) 19 NSWLR 158 at 166-7, per Kirby P. That is to say, as the District Court is not a superior court of record in the manner of the Supreme Court, it has no 'inherent jurisdiction' exercisable in the absence of a statutory grant of power.
26 District Court Rules 1973 Pt 9 r 19A.
27 District Court Act 1973 s 44(1)(a).
28 District Court Act 1973 ss 44(1)(d) and (d1).
29 District Court Act 1973 s 46.
30 District Court Act 1973 s 133(2).
31 District Court Act 1973 s 134(1).
32 District Court Act 1973 s 134(1).
33 District Court Act 1973 s 127.
34 Including the attempted deposition of the sovereign or the overawing of Parliament.
35 This situation is brought about by the cumulative effect of s 46(2) of the Criminal Procedure Act 1986, s 46(2) of the Criminal Procedure Regulation 2000 (NSW) and ss 12 and 19A of the Crimes Act 1900.
36 Criminal Appeal Act 1912 s 5.
37 District Court Act 1973 ss 199 and 203.
38 Supreme Court Act 1970 s 57.
39 Supreme Court Act 1970 ss 66-7.
40 Supreme Court Act 1970 s 69.
41 Supreme Court Act 1970 s 75.
42 Supreme Court Rules 1970 O 55.
43 Criminal Procedure Act 1986 s 46(1).
44 Criminal Procedure Act 1986 s 245.
45 Criminal Appeal Act 1912.
46 Supreme Court Act 1970 s 43.
47 Supreme Court Act 1970 s 101.
48 Criminal Appeal Act 1912 s 3(1).
49 Criminal Appeal Act 1912 s 5.
50 Legal Profession Act 1987 (NSW) s 4.
51 Legal Profession Act 1987 s 5.
52 Constitution s 73(ii).
53 Article III, Section 2 of the United States Constitution provides the Supreme Court with jurisdiction only in respect of federal matters or matters with an interstate element. Thus it has no jurisdiction to hear appeals from State courts exercising State jurisdiction, and will not even do so in respect of a State court exercising federal jurisdiction when there is an "independent and adequate State ground" supporting the decision below.
54 Judiciary Act 1903 (Cth) s 35(2).
55 Judiciary Act 1903 (Cth) s 35A.
56 See generally: Land and Environment Court Act 1979 Part 3 Division 1.
57 Industrial Relations Act 1996 s 153.
58 Liquor Act 1982 s 7.
59 Childrens Court Act 1987 (NSW) s 4.
60 Supreme Court Act 1970 s 26; District Court Act 1973 s 13; Local Courts Act 1982 s 12.
61 Oaths Act 1900 (NSW) ss 8 - 9. For the form of the judicial oath, see the previous paper, "Judicial Ethics [Paper 1]."
62 Statutory and Other Offices Remuneration Act 1975 (NSW) s 21 and Schedule 1. See also: Supreme Court Act 1970 s 29; District Court Act 1973 s 15; Local Courts Act 1982 s 24. The same benefit is provided to other public officials whose duties require a similar degree of independence, such as the Director of Public Prosecutions, the Auditor General or the Ombudsman.
63 It is a settled proposition of the common law that superior court judges enjoy such immunity during the term of their office: Re East; Ex Parte Nguyen (1998) 196 CLR 354 at 365-6, per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ. In turn, s 44B of the Judicial Officers Act 1986 applies this immunity to all New South Wales judicial officers.
64 Judicial Officers Act 1986 s 44.
65 Constitution Act 1902 s 56.
66 The Hon JJ Spigelman AC, "Judicial Ethics: Accountability and Education", Paper to the Judicial Ethics Training Course, National Judicial College, Beijing, October 2001.
67 The Hon Justice Michael Kirby, "Independence of the Judiciary- Basic Principle, New Challenges", Speech to the International Bar Association Conference, Hong Kong, June 1998.
68 The Hon Justice S.C. Kenny, "Judicial Education in Australia", Paper prepared for the First Australasian Judicial Educators' Forum, Philippine Judicial Academy, Manila, February 2003.
69 The Hon Justice Keith Mason, "Unconscious Judicial Prejudice", Paper presented to the Supreme and Federal Courts Judges' Conference, Sydney, January 2001.
70 Judicial Officers Act 1986 s 9.
71 Judicial Commission of New South Wales, Annual Report 2002-03, page 12. (www.judcom.nsw.gov.au)
72 National Judicial College of Australia, Annual Report 2002-03, page 3. (www.njca.com.au)
73 A similar procedure is set out for federal judicial officers in s 72 of the Commonwealth Constitution.
74 Judicial Officers Act 1986 s 10.
75 Judicial Officers Act 1986 s 18.
76 Judicial Officers Act 1986 s 20.
77 Judicial Officers Act 1986 s 21.
78 Judicial Officers Act 1986 s 22.
79 Judicial Officers Act 1986 s 24.
80 Judicial Officers Act 1986 s 29.
81 Supreme Court Act 1970 s 26.
82 Supreme Court Act 1970 s 37(2). A retired judicial officer may be appointed even though he or she has reached the ordinary retirement age of 72, provided that the temporary commission is granted before he or she reaches the age of 75: ss 37(4) and (4A).
83 Supreme Court Act 1970 ss 37(1) and (3B).
84 Constitution Act 1902 s 53(5).
85 Supreme Court Act 1981 (UK) s 9.
86 Department for Constitutional Affairs, Judicial Appointments Annual Report 2002-2003, paragraph 3.14. (www.dca.gov.au)
87 Department for Constitutional Affairs, "Proposals for the Reform of Recorder and Deputy High Court Judge Tenure", Consultation Paper, May 2003. (www.dca.gov.uk)
88 The Hon Justice Michael Kirby, ""Acting Judges- A Non-Theoretical Danger", Speech to the New South Wales Young Lawyers' Conference, Sydney, September 1998.
89 New South Wales Bar Association, "Bar Tells NSW Government: No More Acting Judges", Media Release, 29 June 1997. (www.nswbar.asn.au)
90 New South Wales Bar Association, ""Proliferation of part-time acting judges contrary to principles of justice", Media Release, 30 November 1998. (www.nswbar.asn.au)
91 The Hon Chief Justice Murray Gleeson, "A Changing Judiciary" (2001) 75 Australian Law Journal 547 at 551.
92 New South Wales Barristers Rules, Rule 87(j). See also the definition of "member" of a court in Rule 15.
93 The Hon Sir Anthony Mason, "Foreword" (1987) 10(1) University of New South Wales Law Journal 1 at 3.
94 Peter Webb, "Developments in the New South Wales Local Courts", in Australian Institute of Judicial Administration, Magistrates' Courts Administration in Australia, Papers presented at the Second Biennial AIJA Magistrates' Courts Administrators' and Senior Clerks of Court Conference, Sydney, 1991. Page 2.
95 Hilary Golder, High and Responsible Office: A History of the NSW Magistracy, Sydney University Press, Sydney, 1991, page 174.
96 C.R. Briese, "Future Directions in Local Courts of New South Wales" (1987) 10(1) University of New South Wales Law Journal 127 at 129. It is interesting to note, however, that the United Kingdom retains an extremely strong tradition of 'lay magistrates' as the primary form of judicial officer in the lower courts of that country. A recent study has estimated that some 91 percent of questions of fact and sentence arising in UK magistrates' courts are decided by non-lawyers: Rod Morgan and Neil Russell, The judiciary in the magistrates' courts, The Home Office, London, 2000, page 2.
97 The Hon Chief Justice Murray Gleeson, "A Changing Judiciary" (2001) 75 Australian Law Journal 547 at 547-8.
98 The Hon Justice Michael Kirby, "The Rise and Rise of the Magistracy" (2003) 15(1) Judicial Officers' Bulletin 1 at 2.
99 Ex Parte Blume & Anor; Re Osborn & Ors (1958) 75 WN (NSW) 411 at 414-5, per The Court (Owen J, Roper CJ in Eq and Herron J).
100 Hilary Golder, High and Responsible Office: A History of the NSW Magistracy, Sydney University Press, Sydney, 1991, page 177.
101 Macrae & Ors v Attorney-General for New South Wales (1987) 9 NSWLR 268 at 288.
102 Macrae & Ors v Attorney-General for New South Wales (1987) 9 NSWLR 268 at 277, per Kirby P.
103 Local Court Practice Note No. 1 of 2004.
104 Hilary Golder, High and Responsible Office: A History of the NSW Magistracy, Sydney University Press, Sydney, 1991, page 177.
105 Local Court of New South Wales, Annual Review 2003, pages 3 and 6. (www.lawlink.nsw.gov.au/lc.nsf/pages/reps_papers)
106 Supreme Court of New South Wales, Annual Review 2003, pages 50-52. (www.lawlink.nsw.gov.au/sc)
107 Australian Bureau of Statistics, Key National Indicators. (www.abs.gov.au)
108 Local Courts (Civil Claims) Act 1970 s 6.
109 Local Courts (Civil Claims) Act 1970 Schedule 1.
110 Local Courts (Civil Claims) Rules 1988 r 8.
111 Local Courts (Civil Claims) Act 1970 s 23B.
112 Local Courts (Civil Claims) Act 1970 s 23A.
113 Local Courts Act 1982 ss 10B and 10C.
114 Local Court (Civil Claims) Rules 1988 r 9.
115 The Hon Chief Justice Murray Gleeson, "A Changing Judiciary" (2001) 75 Australian Law Journal 547 at 552-3.
116 The Hon Chief Justice Murray Gleeson, "Current Issues for the Australian Judiciary", Address to the Supreme Court of Japan, Tokyo, January 2000.
117 Law Society of New South Wales, "Self-represented litigants", Media Release, 1 July 2002. (www.lawsociety.com.au)
118 Paal Wilson & Co A/S v Partenreederei Hannah Blumenthal [1983] 1 AC 854 at 920-1, per Lord Roskill.
119 Yuill v Yuill [1945] P 15 at 20, per Lord Greene MR.
120 The Hon Justice A.J. Rogers, "Judges in Search of Justice" (1987) 10(1) University of New South Wales Law Journal 93.
121 The Hon Justice A.J. Rogers, "Judges in Search of Justice" (1987) 10(1) University of New South Wales Law Journal 93 at 99.
122 Dietrich v R (1992) 177 CLR 292 at 302, per Mason CJ and McHugh J.
123 McInnis v The Queen (1979) 143 CLR 575 at 592.
124 Foster v The Queen (1981) 6 FLR 440 at 441.
125 Dietrich v R (1992) 177 CLR 292 at 355, per Deane J.
126 Laker Airways Ltd v Department of Trade [1977] 1 QB 643 at 724, per Lawton LJ.
127 The Hon Sir Gerard Brennan, "Judicial Duties", in The Judicial Commission of New South Wales and the Australian Institute of Judicial Administration (eds.), The Role of the Judge, Education Monograph 3, Judicial Commission of New South Wales, Sydney, 2004, pages 9-10.
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