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Where am I now? Lawlink > Supreme Court > Speeches > Judicial Independence and Impartiality: Old Principles, New Developments
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Judicial Independence and Impartiality: Old Principles, New Developments
13th South Pacific Judicial Conference
Apia, Samoa - 28 June to 2 July 1999
by the
Honourable John P Hamilton
Judge of the Equity Division of the Supreme Court of New South Wales
In this paper I deal with general aspects of judicial independence; the particular aspect of impartiality is dealt with by my co-presenter, the Honourable Andrew Wilson, a Justice of the Supreme Court of Samoa.
In the narrow confines of this half paper I can deal with this large subject in only a trite way. I shall make a short examination of the modern concept of the independence of the judiciary and deal with some particular aspects, where the independence of the judiciary has been the subject of debate or pressures in recent times. I refer principally to the Australian experience. The particular aspects to which I shall advert are tenure of office, reduction of jurisdiction, judicial immunities, appointment of judges, dismissal of judges and acting or short commission judges. The paper is divided into sections as follows:
1 General
2 Tenure of Office
3 Reduction of Jurisdiction
4 Judicial Immunities
5 Appointment of Judges
6 Dismissal of Judges
7 Acting or Short Commission Judges
1 General
The general concept of judicial independence was in 1988 stated thus by Sir Nicolas Browne-Wilkinson, then Vice Chancellor, and now Lord Browne-Wilkinson, a Lord of Appeal in Ordinary[1]:
"If you were to ask a thinking man whether he regarded the independence of the judiciary as important, he would almost certainly answer 'Yes.' If asked to explain what he meant by the words, he would probably say that a judge should be free of any pressure from the government or anyone else as to how to decide any particular case; that, for that reason, a judge's salary is not dependent on executive decision but is paid out of the Consolidated Fund and he cannot be removed save by rsolution of both Houses of Parliament. If pressed further and asked why judicial independence was important, our thinking man might at first hesitate. But in due course the answer would be along the lines, 'the courts are there to protect the rights of the individual as against the state by ensuring that executive powers are lawfully exercised.'"
Or, thus, more formally, by Sir Richard McGarvie, formerly a Justice of the Supreme Court of Victoria, and subsequently Governor of Victoria[2]:
"It is vital to identify clearly what in this context is meant by judicial independence. It refers only to independence in making decisions in court cases between litigants. It means only that in making such decisions a judge must be individually independent in the sense of being free of pressures which would tend to influence a judge to reach a decision in a case other than that which is indicated by intellect and conscience based on a genuine assessment of the evidence and an honest application of the law."
The modern doctrine of the independence of the judiciary historically has two important sources. The first is the doctrine of the separation of powers. That doctrine has roots going back into classical philosophy[3]. It received its classic modern statement in the 18th century in Montesquieu's The Spirit of Laws, where, concerning judicial power it is said[4]:
"Again, there is no liberty, if the power of judging be not separated from the legislative and executive powers. Were it joined the legislative, the life and liberty of the subject would be exposed to arbitrary controul; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor."
The other of those sources flowed from the independence of the common law Judges established through the English constitutional struggles of the 17th century. Sir Edward Coke, the Lord Chief Justice of the Common Pleas, himself recounts thus a famous interview with King James I on the proposition that, the Judges being the King's Judges, the King could withdraw causes from the Judges and decide them himself[5]:
"Then the King said, that he thought the law was founded upon reason, and that he and others had reason, as well as the Judges: to which it was answered by me, that true it was, that God had endowed His Majesty with excellent science, and great endowments of nature; but His Majesty was not learned in the laws of his realm of England, and causes which concern the life, or inheritance, or goods, or fortunes of his subjects, are not to be decided by natural reason but by the artificial reason and judgment of law, which law is an act which requires long study and experience, before that a man can attain to the cognizance of it: that the law was the golden met-wand and measure to try the causes of the subjects; and which protected His Majesty in safety and peace: with which the King was greatly offended, and said that then he should be under the law, which was treason to affirm, as he said; to which I said, that Bracton saith, quod Rex non debet esse sub homine, sed sub Deo et lege[6]."
Issues of judicial independence continued important through the Civil War of the mid-17th century and were again at the forefront in the reign of King James II and at the Glorious Revolution of 1688. The Act of Settlement of 1700 or 1701[7] in s III fixed the basic term of appointment of judges in the modern Anglo/American system by providing that "Judges Commissions be made Quandiu se benegesserint[8], and their Salaries ascertained and established; but upon the address of both Houses of Parliament it may be lawful to remove them." However, there are two views as to whether these provisions were interdependent, one being that the addresses for dismissal are at the will of the Houses, and not dependent on proof of misbehaviour[9], the other that, at least by constitutional convention, they could only be on the ground of misbehaviour[10]. The two sources were drawn together in the constitution making process after the American War of Independence, which had as two of its principal sources of intellectual inspiration the French Enlightment of the 18th century and the judicial traditions of the common law. In "The Federalist" Papers, the great apologist of the American Republic, Alexander Hamilton, wrote[11]:
"According to the plan of the convention, all judges who may be appointed by the United States are to hold their offices during good behaviour; which is conformable to the most approved of the State constitutions, and among the rest, to that of this State. Its propriety having been drawn into question by the adversaries of that plan is no light symptom of the rage for objection which disorders their imaginations and judgments. The standard of good behaviour for the continuance in office of the judicial magistracy is certainly one of the most valuable of the modern improvements in the practice of government. In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government to secure a steady, upright, and impartial administration of the laws.
Whoever attentively considers the different departments of power must perceive that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honours, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can taken no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments."
This theme of the fragility of judicial independence[12] was taken up and elaborated by Sir Ninian Stephen, while a Justice of the High Court of Australia, in his well known "Fragile Bastion" paper[13].
The US Constitution provided that[14]:
"The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office."
but that[15]:
"The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other High Crimes and Misdemeanours."
"Civil Officers" include Judges, and there is no doubt in the US that there can be no removal of Judges without impeachment. The power of the courts under a federal constitution, where the powers of the legislatures at the different levels are limited, to declare void legislation beyond the power of a legislature, was not specifically provided for in the US Constitution, but was assumed by Hamilton to exist, and was taken to itself by the US Supreme Court in the epoch making decision of Marbury v Madison[16].
With the growth of international cooperation during the 20th century, there have been various efforts by international organisations to create universal or international standards of judicial independence. Thus cl 1 of the "Basic Principles of the Independence of the Judiciary" endorsed by the General Assembly of the United Nations on 29 November 1985[17] was:
"The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary."
One of the recent formulations most relevant to the Asia Pacific region of a standard or principles relating to the independence of the judiciary is that made by the Chief Justices of the region at their biennial conferences. These principles were formulated at the meeting in Beijing in 1995. They were refined at the meeting in Manila in 1997, and have now been subscribed by the Chief Justices of 32 nations in the region, nations as diverse as Tonga, Australia, Russia and the People's Republic of China[18]. A copy of the Beijing Statement incorporating these principles is attached to this paper.
2 Tenure of Office
Whilst in 1900 the Constitution of the Commonwealth of Australia did not emulate the US Constitution in its separation of the legislative and executive branches of government, but adopted rather the Westminster system of ministers sitting in and having direct responsibility to Parliament, it did in effect adopt the US model of judicial tenure. The Constitution by s 72 provided for the appointment of federal Judges for life (subsequently reduced to a fixed retiring age by constitutional amendment in 1977), Judges to be removed only by the Governor General in Council upon an address from both Houses of Parliament praying for such removal on the ground of proved misbehaviour or incapacity. The proof of misbehaviour (or incapacity) thus became de jure a precondition of dismissal in the Australian Commonwealth[19].
The Australian States in most instances in their constitutions reflect the less satisfactory pattern of the 18th century settlement in England[20], under which, as has already been pointed out, it is probably the better view that the provisions for tenure during good behaviour, but removal upon an address from both Houses, are disjunctive, so that the addresses for removal by Parliament may be made at will, and not only upon proof of misbehaviour. Furthermore, one of the practical problems that has arisen is what happens upon the abolition of a particular court. There have been a number of instances of this in Australia recently[21]. One example was when New South Wales abolished Courts of Petty Sessions as its Magistates' Courts in 1982 and replaced them with a Local Court. The Magistrates of the abolished courts were invited to apply for appointment to the new Court, and interviewed by a selection committee. All were recommended for appointment but five. The Magistrates did not then have tenure during good behaviour. The five obtained relief from the Court of Appeal on the basis of a denial of natural justice, to ensure that they were given a full opportunity to be heard by the selection committee on allegations made against them[22]. One of the five obtained further relief from the Court of Appeal relating to subsequent proceedings before a selection committee[23], but this was reversed by the High Court[24] Perhaps the worst example was when Victoria abolished its Road Accidents Tribunal in 1992, after a short existence (since 1985), and thus, in effect, dismissed its members, who had the status of judges. Some of them were reappointed to the Victorian County Court or Administrative Appeals Tribunal, and thus obtained comparable positions. Other were not. Widespread protests were of no avail[25].
Both these problems have been recently addressed in New South Wales. The provisions of ss 53 - 56 were inserted in the Constitution Act 1902 in 1992 and entrenched in 1995[26] The provisions now in force in New South Wales are as follows:
"53 Removal from judicial office
(1) No holder of a judicial office can be removed from the office, except as provided by this Part.
(2) 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 removal on the ground of proved misbehaviour or incapacity.
(3) Legislation may lay down additional procedures and requirements to be complied with before a judicial officer may be removed from office.
(4) This section extends to term appointments to a judicial office, but does not apply to the holder of the office at the expiry of such a term.
(5) This section extends to acting appointments to a judicial office, whether made with or without a specific term.
54 Suspension from judicial office
(1) No holder of a judicial office can be suspended from the office, except in accordance with legislation.
(2) A suspended judicial officer is entitled to be paid remuneration as a judicial officer during the period of suspension, at the current rate applicable to the office from which he or she is suspended.
55 Retirement
(1) This Part does not prevent the fixing or a change of age at which all judicial officers, or all judicial officers of a court, are required to retire by legislation.
(2) However, such a change does not apply to a judicial officer holding office when the change takes effect, unless the judicial officer consents.
56 Abolition of judicial office
(1) This Part does not prevent the abolition by legislation of a judicial office.
(2) The person who held an abolished judicial office is entitled (without loss of remuneration) to be appointed to and to hold another judicial office in the same court or in a court of equivalent or higher status, unless already the holder of such an office.
(3) That right remains operative for the period during which the person was entitled to hold the abolished office, subject to removal or suspension in accordance with law. The right lapses if the person declines appointment to the other office or resigns from it.
(4) This section applies whether the judicial office was abolished directly or whether it was abolished indirectly by the abolition of a court or part of a court."
What is more, whilst the full judicial tenure previously extended in New South Wales only to Judges of the Supreme Court (as remains the case in all or most other States), this entrenched tenure was conferred upon not only Judges of the Supeme Court or courts having the status of the Supreme Court, but of inferior courts such as the District Court and the Compensation Court, and on the Magistrates of the Local Court.
This legislative formulation in New South Wales accords in general terms with the principles laid down in the Beijing statement clauses 18 - 30.
3 Reduction of Jurisdiction
Another way in which Judges may be removed from adjudicating upon particular issues is the withdrawal of jurisdiction from their Court. There have been two recent developments in this area in Australia. The first is by way of legislative action for entrenched protection of jurisdiction in Victoria. Whilst the provisions for protection of the tenure of Judges have not been entrenched, as in New South Wales, an amendment in 1991 to s 85 of the Constitution Act 1975 (Vic) provides that the jurisdiction of the Supreme Court of Victoria may not be diminished by implication, but only expressly, by subsequent enactment, and that such enactment requires, not a referendum, but special procedures within the Parliament for its enactment.
The second development arises from the provisions of the Commonwealth Constitution as to judicial power and their interpretation by the High Court in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51. The relevance of this in the area of judicial independence was adverted to as follows in the New South Wales Court of Appeal by Spigelman CJ in Bruce v Cole[27]:
"Although the New South Wales Constitution does not embody a formal separation of powers, there is significant restraint upon the ability of the Parliament of New South Wales to impinge on the independence of the judiciary. This restraint derives from The Commonwealth Constitution.
In Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, the High Court enunciated an incompatability doctrine, directed to the matter in issue in that case, namely: Was the exercise of a specific non-judicial power compatible with the exercise by the State Court of the judicial power of the Commonwealth? The reasoning of the Court involved principles of broader application.
As McHugh J said:
'... it is a necessary implication of the Constitution's plan of an Australian judicial system with State Courts invested with federal jurisdiction, that no government can act in a way that might undermine public confidence in the impartial administration of the judicial function of State Courts.' (118)
His Honour emphasised the centrality of independence of the judiciary and concluded:
'In the case of State Courts, this means they must be independent and appear to be independent of their own State's legislature and executive government as well as the federal legislature and government' (106)
Justice Gaudron's reasoning was to similar effect:
'... there is nothing anywhere in the Constitution to suggest that it permits of different grades or qualities of jutice, depending on whether judicial power is exercised by State Courts or Federal Courts created by the Parliament.' (103)
The reasoning in Kable, in my opinion, indicates that the legislative power of the State may not be used to fundamentally alter the independence of a Supreme Court Judge, or the integrity of the State judicial system. No submission has been made that any part of the Judicial Officers Act 1986 or the Constitution Act 1902, in their present form, has any such effect."
4 Judicial Immunities
Whilst they are a less frequent subject of commentary than protected tenure, judicial immunities are an equally important aspect of judicial independence. "Just as members of parliament are immune from action in respect of what they say in the course of parliamentary debates, so judicial officers are immune from suit in respect of judicial acts"[28]. So far as litigation is concerned, the immunity also extends to advocates, jurors and witnesses. Judges are also immune from being obliged to submit to investigation of their reasons for their decisions. A recent Canadian case[29] considered this immunity in the context of a Royal Commission into the circumstances of a murder trial and conviction. The matter had been referred to the Appeal Division of the Supreme Court of Nova Scotia for a redetermination. The Royal Commission summoned the Justices who sat on the reference to be examined before it. The Supreme Court of Canada held that the Public Inquiries Act of Nova Scotia was not effective to abrogate the privilege which entitles judges to refuse to testify about the grounds of their decision. They must give reasons for their judgments, but they cannot be examined about them. That privilege was established in the 17th century, when the House of Lords made an unsuccessful attempt to have Lord Chief Justice Holt explain why he had quashed an indictment for murder[30].
McLachlin J said[31]:
"The judge's right to refuse to answer to the executive or legislative branches of government or their appointees as to how and why the judge arrived at a particular judicial conclusion is essential to the personal independence of the judge, one of the two main aspects of judicial independence."
See also Valente v The Queen[32] and Beauregard v Canada[33].
5 Appointment of Judges
This is not the place in which to go at any length into the difficult question of the appointment of judges. Whilst the principle of the separation of powers might suggest that a mode of selection independent of the executive government is desirable, and this has been adopted in some jurisdictions, in general appointment remains the prerogative of the executive government of the day. This is generally exercised according to conventions within the particular jurisdiction concerned[34]. One pressure that is heard from time to time in Australia is a call for a "more representative" judiciary, which, insofar as it has any objective meaning, seems to be based upon a notion that the judiciary should somehow be proportionally representative in numbers of various groups in the community, such as women or minority racial groups. Whilst the process of adjudication must in an overall way reflect community views, in order for the judiciary to retain the confidence of the community, it is vital to the survival of the "fragile bastion" that individual decisions, to do justice, may run contrary to public opinion on specific issues[35]. The inherent fault of the notion of a representative judiciary is that it is antithetical to the notion of an independent judiciary that "representative" judges should give judgments in favour of or be sympathetic to the groups in the community from which they spring, and which they are conceived to represent. The principal requirement for a strong, healthy and independent judiciary is that the people who join it should be people of excellence and that, overall, they have experience in the practical matters of evidence, procedure and court craft, the administration and control of which are their daily task[36].
6 Dismissal of Judges
Whilst removal through the mechanism of parliamentary address and upon the ground of proved incapacity or misbehaviour is the ideal, it is one where practical problems have been found to exist in the rare instances of the necessity for its application in practice. In Australia, only a small number of Judges were removed in the colonial days of the 19th century, before the modern constitutional provisions were fully in force. One was Mr Justice Willis, the Port Phillip District Judge of the Supreme Court of New South Wales, in 1843, who was removed by the Governor without legislative address[37]. A second was Mr Justice Montague who was removed from the Supreme Court of Van Dieman's Land for impecuniosity and his actions in avoiding his creditors[38]. A third was Mr Justice Boothby, of the Supreme Court of South Australia, who was removed by the Governor in 1865, upon address of both the South Australian houses, although he could probably have been removed, without any form of Parliamentary address[39]. There have been at least three judges of superior courts subject to such process in recent times. The first was Mr Justice Murphy of the High Court of Australia in the 1980s, who died before the matter proceeded to finality[40]. The second was Mr Justice Vasta of the Queensland Supreme Court, who was removed in 1989 on an address of that State's unicameral Parliament[41]. Recently in New South Wales, in circumstances mentioned below, proceedings were brought in Parliament against Justice Vince Bruce of the Supreme Court, but failed, after a written defence[42] and a spirited speech by the Judge, to gain an affirmative vote (16-24) in the upper house (the Legislative Council), where the motion for the address was first moved. The practical problems thrown up revolve around the unsuitability of parliamentary houses as adjudicative bodies and the problem of the establishment in a satisfactory way of the proved incapacity or misconduct sought to be relied on. In the cases from the High Court and Queensland mentioned above, the procedure adopted was the appointment by special legislation of ad hoc commissions of judges or retired judges to report upon the allegations[43].
Again it is New South Wales that has essayed a more radical solution[44]. By the Judicial Officers Act 1986 ("the JO Act") there was created the Judicial Commission of New South Wales. The Commission has eight members of whom six are the heads of jurisdiction of the New South Wales Courts, one is a legal practitioner nominated by the Minister after consultation with the professional bodies, and one a person who in the opinion of the Minister has high standing in the community. The President is the Chief Justice of the Supreme Court of New South Wales: s 5. The Judicial Commission has a permanent staff: s 6. The Commission has functions other than disciplinary functions. In particular, it has three principal functions. The first is to assist in the monitoring of criminal sentencing: s 8. The second is a function of judicial education: s 9. For instance, the Commission provides and organises annual conferences for New South Wales Courts, which provide opportunities for the receipt by and exchange among judicial officers of ideas. It co-organises an orientation course for new Judges and Masters, which is widely attended by new Judges not only from New South Wales, but also from all other Australian jurisdictions and even, in some instances, by Judges from other countries in the region. However, a principal function is to provide for the monitoring of complaints against judicial officers and in the case of serious complaints which could potentially lead to removal proceedings, the factual adjudication upon those complaints before Parliamentary proceedings are taken.
By s 15(1) any person may complain "about a matter that concerns or may concern the ability or behaviour of a judicial officer". "Judicial officer" is defined to mean, in effect, all Judges, Masters and Magistrates in NSW: s 3 (1). A complaint is examined by the Judicial Commission (or a committee thereof) which may initiate such inquiries as it thinks fit (as far as practicable in private): s 18. Thereafter the complaint must be summarily dismissed, or classified by the Judicial Commission as a serious complaint (which if substantiated could justify parliamentary consideration of removal from office) or as a minor complaint: ss 19, 30. A minor complaint may be referred to the relevant head of jurisdiction: s 21(2). Otherwise the complaint is referred to a panel of three judicial officers (one of whom may be retired), who constitute the Conduct Division for the purposes of the complaint: s 22.
The Conduct Division must examine the complaint, may initiate such investigations as it thinks appropriate (as far as practicable in private) (s 23), and may hold hearings (s 24(1)), which in the case of a serious complaint are normally in public: s 24(2). Most of the provisions of the Royal Commissions Act 1923 apply to a hearing: s 25. By s 34 the Conduct Division may request the judicial officer to undergo medical examination if it is of the opinion that he or she "may be physically or mentally unfit to exercise efficiently the functions of a judicial office." If the Conduct Division decides that a minor complaint is wholly or partly substantiated, it so informs the judicial officer concerned, or decides that no action need be taken: s 27. Sections 28, 29 and 41 are set out in full:
"28 Substantiation of serious complaint
If the Conduct Division decides that a serious complaint is wholly or partly substantiated, it may form an opinion that the matter could justify parliamentary consideration of the removal of the judicial officer complained about from office.
29 Reports
(1) The Conduct Division shall, in relation to a serious complaint , present to the Governor a report setting out the Division's conclusions.
(2) If the Conduct Division decides that a serious complaint is wholly or partly substantiated and forms an opinion that the matter could justify parliamentary consideration of the removal of the judicial officer from office, the report shall set out:
(a) the Division's findings of fact; and
(b) that opinion.
(3) The Minister shall lay the report or cause it to be laid before both Houses of Parliament as soon as practicable after the report is presented to the Governor.
(4) The Minister may present the report to the Clerks of both Houses of Parliament when Parliament is not sitting, and thereupon the report shall for all purposes be deemed to have been laid before both Houses of Parliament, but the Minister shall nevertheless lay the report or cause it to be laid before both Houses of Parliament as soon as practicable after Parliament resumes.
(5) A report presented to the Clerk of a House of Parliament may be printed by authority of the Clerk of the House and shall for all purposes be deemed to be a document published by order or under the authority of the House.
(6) A copy of any report presented to the Governor shall also be furnished forthwith to the Commission.
(7) The Conduct Division shall, in relation to a minor complaint, furnish a report to the Commission setting out the action taken by the Division.
(8) A copy of any report referred to in this section shall also be furnished to the judicial officer concerned.
......
41 Removal of judicial officers
(1) A judicial officer may not be removed from office in the absence of a report of the Conduct Division to the Governor under this Act that sets out the Division's opinion that the matters referred to in the report could justify parliamentary consideration of the removal of the judicial officer on the ground of proved misbehaviour or incapacity.
(2) The provisions of this section are additional to those of section 53 of the Constitution Act 1902."
By ss 40 and 43 the relevant head of jurisdiction may suspend a judicial officer from the exercise of judicial functions in any of four events, namely if the judicial officer is:
(a) the subject of a complaint, or
(b) the subject of a report by the Conduct Division containing its opinion that a matter could justify parliamentary consideration of removal from office, or
(c) charged with an offence which in New South Wales would be punishable by imprisonment for at least 12 months, or
(d) convicted of such an offence[45].
The JO Act provides for the determination of the facts of complaints a tribunal, the constitution of which is beyond the control of the Executive. This avoids the risk of a partial tribunal, or at the very least the appearance of such, which was a distressing feature of the dismissal of the Malaysian Judges[46].
Judges' conduct was also made examinable in NSW by the Independent Commission against Corruption Act 1988, which established an Independent Commission against Corruption ("the ICAC") with wide ranging powers to examine the conduct of or matters relating to "public officials". The definition of "public officials" expressly includes judges. A principal function of the Commission is to investigate "any circumstances implying, or any allegations, that corrupt conduct may have occurred, may be occurring or may be about to occur" (s 13(1)), and "corrupt conduct" is defined to mean "any conduct of any person that adversely affects the honest or impartial exercise of official functions by any public official or any conduct of a public official that constitutes or involves the dishonest or partial exercise of any of his or her official functions": s 8.
It is interesting that, as Dr Guillotin during the French Revolution died by his own machine, Nicholas Greiner, the then Premier of New South Wales and the principal author of the ICAC, had his political career destroyed by his own invention. The political destruction was permanent, although the findings of the ICAC in relation to him were subsequently struck down by the New South Wales Court of Appeal, although on the basis of lack of power to make findings in the form in which they were made, rather than by attack on the factual basis of the findings[47]. In practice it is to the Judicial Commission that the bulk of complaints against Judges and Magistrates have gone, although the potential for complaint under the ICAC Act cannot be ignored.
These provisions were critically examined in an article by the Hon Malcolm McLelland, then Chief Judge in Equity of the Supreme Court of New South Wales and a highly respected Judge[48]. McLelland CJ in Eq, whilst conceding that provision needed to be made for adjudication of the facts relating to allegations of serious judicial misconduct, made acute and compelling criticisms of the machinery in fact provided by the JO Act. The criticisms proceeded in part by reference to the problem of the encouragement of trivial and distracting complaints likely to be attracted by the provision of a mechanism in this form. He also drew attention to the lack of provision for the costs of a judicial officer called upon to appear before the Conduct Division upon a complaint, which was a possible source of injustice, whether or not the complaint proved to be justified. The power of suspension, he suggested, was a derogation from judicial independence, and disturbed the traditional position of a Chief Justice or Chief Judge as primus inter pares. He proposed a solution somewhere between the creation of ad hoc commissions in response to particular allegations, represented by the Commonwealth, Queensland and ACT Acts cited above, and the provision of formal machinery to deal with complaints, however trivial, which was, in effect, a sledgehammer to crack a nut. He suggested a permanent tribunal, but one which could deal with complaints only upon the initiation of the Attorney General, who would first examine all complaints and ensure that they were of substance, both in their nature and as to the supporting material available, before proceedings could be initiated against a judicial officer. His proposal is thought provoking and its features were set out as follows in his article[49]:
"1 The tribunal should exercise judicial, and not inquisitorial or investigatory functions.
2 Proceedings before the tribunal should be initiated only by the Attorney General of the relevant jurisdiction, upon a statement of the facts alleged to constitute misbehaviour or incapacity of a judge, accompanied by a certificate of the Attorney General that in his opinion:
(a) the facts alleged, if established, could warrant removal of the judge from office, and
(b) there is credible evidence available to support these facts.
3 The function of the tribunal should be to determine whether facts are established, in accordance with the initiating statement, which constitute misbehaviour or incapacity which could warrant removal of the judge from office.
4 The proceedings before the tribunal should be conducted in accordance with the princiiples of natural justice and the rules of evidence.
5 The judge should not be called on to answer an allegation of misbehaviour or incapacity unless and until the tribunal determines that the evidence adduced in support of the allegation is capable of supporting a finding of misbehavious or incapacity which could warrant removal from office.
6 The proceedings should be conducted in private.
7 The reasonable costs of the judge's legal representation in the proceedings before the tribunal and in any appeal from, or judicial review of, those proceedings, should be borne by the relevant government.
8 The tribunal should be subject to the supervisory jurisdiction of, and an appeal should lie from the tribunal to, the High Court of Australia."
This has not been implemented in New South Wales, although the constitutional amendments in 1992 and 1995 already mentioned are to the credit of the Government of that State.
In practice the operation of the complaints procedure under the JO Act does not seem to date to have caused in any major way the consequences feared by McLelland CJ in Eq. Many of the complaints made have, as anticipated by his Honour, been of a trivial nature and/or made by the disgruntled losers of litigation. The filtering process appears to have worked reasonably well and such complaints have as a routine matter been summarily dismissed. The number of complaints commenced at betweem 20 and 30 per annum. They peaked at 55 in the late 1980s. They fell again to the mid 20s until well into the 1990s. However, there has been a sharp rise in complaints of recent years. The figures appearing in the Judicial Commission of New South Wales Annual Reports up to 1995 - 1996 are tabulated by Justice Thomas in his book[50].
The two latest annual reports list and categorise the year's complaints as follows:
1996 - 1997 [51]
| Complaint particulars | Number |
Complaints examined and dismissed under ss 18 & 20 of the Act | 116 |
Minor complaints disposed of during the year | 2 |
Serious complaints disposed of during the year | 0 |
Complaints withdrawn | 5 |
1997 - 1998 [52]
| Complaint particulars | Number |
Complaints examined and dismissed under ss 18 & 20 of the Act | 114 |
Minor complaints disposed of during the year | 7 |
Serious complaints disposed of during the year | 5 |
Complaints withdrawn | 1 |
The Commission's summary of the nature of the complaints finalised in the 1997- 1998 year may be of some interest [53]:
"The most common ground of coplaint involved apprehension of bias, failure to give a fair hearing, or conduct which was said to display hostility to discourtesy towards the complainant. In the period under consideration a high proportion of complaints alleged that the judicial officer in question unfairly or improperly prevented the losing party to litigation from properly putting his or her case, or favoured the winning party.
Complaints of this nature are assessed by examining the detail of the record and, where appropriate, seeking an explanation from the judicial officer involved. In the case of many of these complaints, a sound recording of the proceedings is listened to, or a written transcript is examined.
Some complaints involved allegations of incompetence. In evaluating these complaints the members of the Commission considered the issues and evidence in the case in question, and took into account their own knowledge and judicial experience, where appropriate.
Other matters, in essence, amounted to a complaint that a judicial officer had made a wrong decision. Frequently, complaints of this kind are made in apparent substitution for appeals to a higher court. Standing alone, this is not a proper basis of complaint. However, where the complainant goes on to allege that not merely was the decision wrong, but also that it was such that no reasonable person could have made it, and for that reason it reveals some impropriety on the part of the judicial officer, then the Commission gives close consideration to the material that was before the judicial officer in order to see whether such a charge can be substantiated.
As in past years, a high proportion of complaints arose out of applications for apprehended violence orders. This is not surprising, as these proceedings usually involve emotional stress and frequently one party is not legally represented. Sometimes both parties are unrepresented. Judicial officers who deal with these applications are obliged to behave in an impartial manner, but this is sometimes construed as a failure to show appropriate concern for the situation of one of the parties. As a result, this form of litigation generates many complaints to the Commission."
There have been serious complaints instituted against six judicial officers, only one being a Judge of the Supreme Court. Of these one proceeded to report and the judicial officer involved resigned after the report and before the matter was brought before parliament. Three others have resigned before the report was completed. The matter in which the machinery was fully put into operation was that of Justice Vince Bruce of the Supreme Court. The complaint was of incapacity rather than misconduct. Justice Bruce had a serious backlog of undecided cases totalling 33 at one stage. Many of them had been reserved for more than 12 months. It appeared from the evidence in that case that, while the backlog was accumulating, the Judge was suffering from a depressive illness. One of the symptoms of this illness is the patient's unawareness of the state of depression, so that it was only quite recently that he had sought treatment. The evidence that he led was that the treatment had been successful, so that he was no longer subject to the depressive condition and was therefore fit and not under any disability. Another psychiatrist, however, gave evidence that he did not accept that the disability had been resolved in that way, but was of the belief that the problem arose not simply from the depressive illness but from inbuilt habits of procrastination. The Conduct Division which heard the case was composed of Mr Justice Cole, then a Judge of the New South Wales Court of Appeal; Mr Justice Lloyd, a Judge of the New South Wales Land and Environment Court (a Court of the same status as the New South Wales Supreme Court); and the Hon Dennis Mahoney QC, a retired President of the New South Wales Court of Appeal. A report signed by all three members accepted that the established disability had not been cured and that there was therefore a case that the Judge might be dismissed by Parliament for incapacity[54]; however, a dissenting report prepared by Mr Mahoney QC, accepted the evidence that the disability had been cured and that there was therefore no incapacity by reference to which the Houses of Parliament might pass an address for the Judge's removal[55]. An interlocutory injunction was sought from the New South Wales Court of Appeal restraining the report being laid before Parliament but this relief was refused[56]. On the final hearing of the proceedings, the Court of Appeal did not accede to an argument that the opinion in s 28 and the report in s 29 had to be unanimous. Nor would they hold that the majority's finding of fact was without any basis[57]. The result in Parliament was as set out above. The Judge has since resigned.
7 Acting or Short Commission Judges
This is a vexed question[58]. Often Judges are needed on a temporary basis. This is sometimes necessitated by the absence of Judges on leave or by reason or illness. Sometimes it is necessitated by a bulge in the case load which a Court has to deal with, ie, there is some temporary increase of work which it can be foreseen will not necessitate the more expensive course of appointing additional permanent judicial officers. This is a situation perceived to occur more frequently by Governments than by Judges. The objection is plainly that the temporary Judge may have something to hope for from the Government, namely, permanent appointment in the case of the Acting Judge, renewal of the commission in the case of the short term Judge. The objection is less where the appointee is a retired Judge. Some jurisdictions do not use Acting Judges at all. In the NSW Supreme Court, there has been a custom extending over decades of the sparing use of Acting Judges, generally senior members of the Bar. Of recent years there has been extensive use of Acting Judges. I myself was an Acting Judge of the Court from July to November 1996, before my permanent appointment in March 1997. This extensive use was opposed by the Bar, and did not meet the approval of the Judges of the Court. In 1999, considerable use is being made of Acting Judges, but now all Acting Judges are retired judicial officers. However, in the District Court of NSW, there is current a disturbing practice. That Court is the principal criminal trial Court of the State (generally only murders are indicted in the Supreme Court), and has a very large civil jurisdiction including virtually all actions for damages for tort, and commercial actions to recover sums up to $A750,000. The Court has about 65 permanent Judges. During 1999 it has 55 Acting Judges. Of these, only some 15 are retired judicial officers. The balance are legal practitioners, barristers or solicitors. What is worse, these Acting Judges are not full time. Their commissions are for a fixed term, but during that term they sit only from time to time, as called on. In the case of the practitioners, they practise for the balance of the time. There have been plenty of instances of other practitioners finding themselves appearing in Court before a person one day, and opposed to him or her in Court in a similar type of case the next day. No amount of protest has yet been able to deflect the Government from this course.
Conclusion
The principles of judicial independence are, in general terms, long established and well respected. They have received international formulation. They are, in general terms, observed in most jurisdictions. However, as with freedom, the price of judicial independence is eternal vigilance. The tensions that arise from time to time between government and judiciary are a natural and inevitable part of life. So far as novelty is concerned, probably the most important recent innovations have been in the area of fact finding where allegations of misconduct or incapacity arise. The NSW Judicial Commission is an interesting experiment in this regard. It has provided a useful mechanism for finding facts when necessary. It has also in fact provided a satisfactory filtering process for vexatious complaints. The jury is still out on whether or not its value in this regard outweighs its propensity to attract such complaints.
There is a price for the position of independence accorded to Judges. It is that they must adhere punctiliously to their oath to do right "without fear or favour, affection or ill will". This was recently re-emphasized thus by Spigelman CJ in the decision of Bruce v Cole itself[59]:
"In cases which engage the sense of compassion of a judge such as this, it is necessary to avoid the temptation to express a conclusion in terms of one of the recognised grounds for judicial review, whilst in truth making a decision based on the merits. In a democratic society such conduct transgresses the proper limits of judicial intervention. It will, if often repeated, undermine the basis for judicial independence and the fundamental role which judicial impartiality plays in the social stability of the nation and the maintenance of personal freedom of its citizens.
Where, as here, the case directly involves the independence of the judiciary, it is particularly important that this Court be, and be seen to be, punctilious in this regard."
Works referred to
Amerasinghe, A, "Judicial Independence with Accountability", Paper delivered at the AIJA Asia Pacific Courts Conference Sydney, 22 - 24 August 1997
Behan, HF, Mr Justice Willis, the author, Glen Iris, 1979, esp Chs 23, 24
Browne-Wilkinson, N, "The Independence of the Judiciary in the 1980s", [1988] Public Law 44
Campbell, Enid, "Suspension of Judges from Office", (1999) 18 Aust Bar Rev 63
Canadian Judicial Council, Ethical Principles for Judges, Ottawa, 1998
Church, Thomas W & Peter A Sallmann, Governing Australia's Courts, AIJA, Carlton South, 1991
Cunningham, Helen, ed, Fragile Bastion: Judicial Independence in the Nineties and Beyond, Judicial Commission of NSW, Sydney, nd [1997]
Eichelbaum, Sir Thomas, "Judicial Independence with Accountability", Paper delivered at the AIJA Asia Pacific Courts Conference Sydney, 22-24 August 1997
Friedland, Martin L, A Place Apart: Judicial Independence and Accountability in Canada, Canadian Judicial Council, Ottawa, 1995
Gibbs, Sir Harry, "The Appointment and Removal of Judges", (1987) 17 Fed L Rev 141
Gleeson, A M (1979), "Judging the Judges", Paper presented at the 20th Australian Legal Convention
Gleeson, A M (1995), "Judicial Accountability", Paper delivered at the AIJA Conference on "Courts in a Representative Democracy", 13 November 1994, (1995) 2 Judicial Review 117
Green, Sir Guy, "The Rationale and some Aspects of Judicial Independence", (1985) 59 ALJ 135
[Hamilton, Alexander], The Federalist: A Collection of Essays, Written in Favour of the New Constitution, 2 vols, J & A McLean, New York, USA, 1789 (rep Legal Classics Library, Birmingham, Alabama, USA, 1983)
International Commission of Jurists, Australian Section, Report on the Dismissal of Mr Justice Angelo Vasta of the Supreme Court of Queensland, Australia, Sydney, 1995
Judicial Commission of New South Wales, Annual Reports, 1986 - 1987 to 1997 - 1998
Judicial Commission of New South Wales Conduct Division (1998/1), Report of the Conduct Division regarding complaints against the Honourable Justice Vince Bruce, 15 May 1998
Judicial Commission of New South Wales Conduct Division (1998/2), Reasons of the Honourable D L Mahoney AO QC re the Honourable Justice Vince Bruce
Judicial Commission of New South Wales Conduct Division (1998/3), Reponse to Report regarding the Honourable Justice Vince Bruce, 26 May 1998
King, L J, "The Separation of Powers", Paper delivered at the AIJA Conference on "Courts in a Representative Democracy", 11 November 1994
Kirby, MD (1995), "Abolition of Courts and Non-reappointment of Judicial Officers", (1995) 12 Aust Bar Rev 18
Kirby, MD (1998), "Independence of the Judiciary - Basic Principle, New Challenges", Paper delivered at the International Bar Association Human Rights Institution Conference Hong Kong, 12-14 June 1998
McGarvie, RE (1991), "The Foundations of Judicial Independence in a Modern Democracy", (1991) 1 JJA 3
McGarvie, RE (1992), "The Ways Available to the Judicial Arm of Government to Preserve Judicial Independence", (1992) 1 JJA 236
McPherson, B H, "Maintaining Judicial Independence in an Age of Accountability", Paper delivered to the Annual Local Courts Conference, Sydney, 2 June 1999
Malcolm, D, "The Beijing Statement of Principles of the Independence of the Judiciary", Paper delivered at the AIJA Asia Pacific Courts Conference Sydney, 22 - 24 August 1997
Mason, Sir Anthony, "The Appointment and Removal of Judges" in Cunningham pp 1 - 38
Moloney, Garrie J, Seminar on Constitutional and Administrative Responsibilities for the Administration of Justice: The Partnership of Judiciary and Executive, Melbourne, 10-11 August 1985, AIJA, Canberra City, 1986
Montesquieu, Baron de, The Spirit of Laws, G & A Ewing and G Faulkner, Dublin 1751 (rep Legal Classics Library, Birmingham, Alabama, USA, 1984)
Parliamentary Judges Commission of Inquiry, First Report, Govt Printer, Queensland, 1989
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Roberts-Wray, Sir Kenneth, Commonwealth and Colonial Law, London, 1966
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Stephen, Sir Ninian (1981), "Southey Memorial Lecture 1981: Judicial Independence - A Fragile Bastion", (1982) 13 MULR 334
Stephen, Sir Ninian (1989), Judicial Independence, AIJA Oration, Brisbane - 21 July 1989, AIJA, Carlton South, 1989
Thomas, J B, Judicial Ethics in Australia, LBC, Sydney, 2nd Ed, 1997
Trindade, F A, "The Removal of the Malaysian Judges", (1990) 106 LQR 51
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Endnotes
1 Browne-Wilkinson p 44
2 McGarvie (1991) p 6
3 King pp 3 - 4
4 Montesquieu Vol 1 pp 185 - 6
5 Prohibitions del Roy (1607) 12 Co Rep 63 at 64 - 5; 77 ER 1342 at 1343; and see Tanner pp 36 - 7
6 that the King ought not be under any man, but under God and the law.
7 12 & 13 Wm III c 2
8 During good behaviour
9 King p32; Roberts-Wray pp 485, 486-7; Mason p 22; McCawley v The King (1918) 26 CLR 9 at 58 - 9 per Isaacs & Rich JJ
10 McLelland p 402
11 Hamilton Paper LXXVIII Vol 2 p 291
12 The continuing practical relevance of Hamilton's views is demonstrated by his reference to the power of the purse, which is always held by the Executive. Relations between the Executive and the Judiciary relating to the administration of the Courts is a continuing vital issue, but one too large to discuss here. Some aspects are dealt with in Justice Beaumont's paper presented at this Conference. In Australia, the Federal superior courts and the South Australian Supreme Court have control of their own administration, but in the other jurisdictions it remains in the hands of the Government: see McGarvie (1991) pp 21 - 32; King pp 51-8; Moloney, Church & Sallmann generally
13 Stephen (1981) passim
14 Art III.1
15 Art II.4
16 1 Cranch 137 (1803)
17 Resolution 40/32
18 As to its nascence, see Malcolm
19 Similarly, in Samoa, the provisions of art 68(1) and (5) of the Constitution. There is only one House in Samoa, but a two-thirds majority is required for the address.
20 Eg, Queensland: Constitution Act 1867 ss 15 - 17; South Australia: Constitution Act 1934 ss 34, 35; Tasmania: Supreme Court (Judges' Independence) Act 1857 s 1; Victoria: Constitution Act 1975 s 77; WA: Constitution Act 1889 ss 54, 55
21 Kirby (1995) pp 190 - 204
22 Macrae v A-G for NSW (1987) 9 NSWLR 268
23 Quin v A-G (NSW) (1988) 16 ALD 550
24 A-G for NSW v Quin (1990) 170 CLR 1
25 Kirby (1995) pp 199-200
26 Entrenched in the sense that an Act to alter the provisions requires not only to be passed by both houses of the legislature, but must receive majority approval at a referendum of the electors, before being assented to by the Governor: s 7B.
27 NSWCA 12 June 1998 unreported pp 4 - 5
28 Gleeson (1995) pp 124-5; Sirros v Moore [1975] QB 118; Moll v Butler (1985) 4 NSWLR 231; Yeldham v Rajski (1989) 18 NSWLR 48.
29 Mackeigan v Hickman [1989] 2 SCR 796
30 Knowles' Trial (1692) 12 How St Tr 1179
31 [1989] 2 SCR 796 at 830
32 [1985] 2 SCR 673
33 [1986] 2 SCR 56
34 Gleeson (1979) p 339
35 Gibbs p 145
36 Gleeson (1979) p 340; and see generally Mason pp 10 - 12
37 See generally Behan Chs 23, 24. This removal (and Montague's) were under the Colonial Judges Leave Act 1782, which gave a right of appeal to the Privy Council. Willis in fact succeeded on an appeal on the ground of a denial of natural justice (Willis v Gipps (1846) 5 Moo PC 379; 13 ER 536), but never resumed office.
38 Montague failed in his appeal to the Privy Council: Montague v The Lieutenant-Governor of Van Dieman's Land (1849) 5 Moo PC 489; 13 ER 773
39 Kirby (1995) p 184; McPherson p 9
40 Thomas pp 178 - 188; Campbell pp 70 - 2
41 Thomas pp 127 - 130. That removal has been the subject of criticism: International Commission of Jurists.
42 Judicial Commission of New South Wales Conduct Division (1998/3)
43 Parliamentary Commission of Inquiry Act 1986 (Cth); Parliamentary (Judges) Commission of Inquiry Act 1988 (Qld). Two reports were made under the latter Act, the First Report relating to Mr Justice Vasta, The Second Report relating to Judge Eric Pratt of the Queensland District Court. Judge Pratt was exonerated.
44 A modified version has been introduced in the Australian Capital Territory: Judicial Commissions Act 1994.
45 The common law as to suspension is itself a vexed topic which has not been considered in this paper: see Rees v Crane [1994] 2 AC 173; McPherson pp 12 -14; and see generally Campbell.
46 McGarvie (1991) pp 15-20; Trindade generally.
47 Greiner v Independent Commission against Corruption (1992) 28 NSWLR 125.
48 McLelland; see also Shetreet (1987); Thomas pp 209 - 213; McPherson pp 15- 16.
49 McLelland p 402
50 Thomas p 211
51 Judicial Commission of New South Wales Annual Report 1996 - 1997 p 20
52 Judicial Commission of New South Wales Annual Report 1997 - 1998 p 39
53 Ibid pp 38 - 39
54 Judicial Commission of New South Wales Conduct Division (1998/1)
55 Judicial Commission of New South Wales Conduct Division (1998/2)
56 Bruce v Cole NSWCA 26 May 1998 unreported.
57 Bruce v Cole NSWCA 12 June 1998 unreported.
58 Thomas pp 208 - 209
59 Bruce v Cole NSWCA 12 June 1998 unreported p 38
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