JUDICIAL ACCOUNTABILITY
The Hon Justice Murray Gleeson, AC
In public debate about the role of the judiciary, the concepts of independence
and accountability are frequently invoked for rhetorical, rather than
analytical, purposes. They are sometimes used as mere incantations. Both
deserve better treatment. Inter-related as they are, a full appreciation of
their implications is essential to any evaluation of our present system and of
proposals for change.
In a democratic community, in which the institutions of government are expected
to operate with integrity and efficiency, such institutions will necessarily be
subject to appropriate forms of accountability. The issue is not as to whether
there should be accountability, but as to the kind of accountability that is
appropriate. Judges were once subject to a direct and extreme form of
accountability. In England, from Norman times until the reign of the Stuarts,
judges held office at the pleasure of the executive government, (the king). Not
even the most determined advocates of increased judicial accountability today
profess a desire to return to that situation. Nor is there a single or simple
answer to the problem of the nature and degree of oversight of judicial
activity that is desirable.
This is hardly surprising. It is generally accepted, in other areas, that the
concept of accountability is flexible and, in its practical application, varies
according to the context in which it is being considered. Everyone agrees, for
example, that company directors should be accountable. Putting that consensus
into effect, however, is not so easy. Directors owe legal, moral, and social
duties of various kinds; they have responsibilities to the body corporate, and
to its shareholders, its creditors, the consumers of products of the
corporation, the public generally, and government. At times those
responsibilities might conflict. The formal mechanisms to enforce directors'
duties are complex. They include removal from office, liability to civil
actions for damages, and exposure to prosecution for breach of penal laws. On
the other hand, members of parliament are subject to a simpler mechanism of
formal accountability. They run the risk, once every few years, of being voted
out of office. Ministers of the Crown are, in theory, accountable to the
Governor-General or the Governor, and in practice, to parliament, the primary
sanction being liability to loss of office. Public servants are subject to
forms of accountability that are different again.
Where the focus of attention is the matter of sanctions, the possibilities are
various. The sanctions may be formal or informal. They may involve dismissal or
suspension, awards of damages in civil actions, penalties such as fines or
imprisonment, or exposure to public criticism, and perhaps even disgrace. In
New South Wales, public officials, including judges, may be publicly and
officially declared corrupt; a sanction which, in most cases, would have
devastating public and personal consequences. Indeed, public officials may be
declared to have engaged in corrupt conduct even though they have not committed
any unlawful act.[1] In this respect, and in
other important respects, the position of the judiciary in New South Wales is
significantly different from that of their counterparts in other Australian
jurisdictions, including the Commonwealth.
No one disputes that the value of accountability must, on occasion, yield to
other values. For example, members of parliament enjoy an absolute immunity
from liability to suit in relation to what they say in parliament. A member of
parliament may, in circumstances where the words are likely to be given the
widest publication, and to have extremely damaging consequences, utter the most
serious and baseless defamation, without fear of being sued for damages. The
usual form of accountability which attaches to the publication of defamatory
matter, (liability to damages), is set aside in the higher interest of
unfettered freedom of expression in parliament.
The Idea of Accountability
Accountability, or responsibility, can range from a rigid subjection of one
person to the control of another, to a degree of responsiveness on the part of
one person to the interests or wishes of another.[2] Professor Cappalletti[3] constructed three models of judicial responsibility. The first was a situation
of dependency or subservience of the judiciary, or the individual judge, in
which a judicial decision could be overruled by the executive, or a judge could
be dismissed for making an unacceptable decision. It was this kind of
relationship between the king and the judiciary that gave rise to some of the
conflicts leading up to the English Act of Settlement. The second was a model
of autonomy in which the judiciary was totally separated from government and
society. The author contended that such a situation existed, for a time, in
post-war Italy.[4] The third model was described
as "responsive" or "consumer-oriented", involving a balance between
independence and accountability. This model, it was said, reflected the central
ideal of a democratic system, "an ideal which frequently goes under the name of
checks and balances/that power should never go uncontrolled and that even
controlling power should not be irresponsible, that is, itself uncontrolled".[5]
Recent Australian publications on public sector management have canvassed
various forms and degrees of supervision, control and reporting, that may be
involved in accountability.[6] It is evident
that the objective of striking an appropriate balance between the requirements
of effective and efficient autonomy and of appropriate responsibility can be
elusive.
It is important, in determining what the balance should be in a given case, to
have a clear idea as to why accountability, or responsibility, is regarded as
an object worth pursuing.
There may be many different ways of categorising the ends that are served by
accountability, but for present purposes, they can be divided into two: the
first, pragmatic; the second philosophical. One objective of a properly
constructed system of responsibility, under which A is controlled by B, or is
responsive to the wishes of B, or is in some other degree accountable to B, is
to improve A's performance; to make A more effective in whatever function is to
be performed by A. Another objective of such a system is dictated by the
political philosophy which informs our system of government. Power should not
go uncontrolled, and must be responsible, and responsive, to the community.
Those considerations are applicable to the judiciary, as an institution, and to
judges as individuals, just as they are to any other area of governmental
activity.
In the context of the making of individual decisions in disputes that come
before the courts, or in the trial of persons accused of crime, effectiveness
primarily involves making the right decision. In this context the right
decision is a decision that is just, according to law. The objective of
accountability is that, provided it takes an appropriate form, it should
promote good decision-making.
The public are also interested in the integrity of the decision-making process.
The method by which decisions are made must be, and be seen to be, just. The
decision-maker must be impartial, and the decision-making process must be
transparent and fair. This is because the acceptability of judicial
decision-making is essential to the stability of the community. Courts deal
with the prosecution of offenders, and with the resolution of civil disputes
between citizen and citizen, or between citizen and government. In the case of
almost every judicial decision, there is at least one loser. Judicial decisions
may provoke vigorous disagreement, but the peace and security of the community
depend upon there being a general willingness to abide by them.
In short, in pragmatic terms, the ends to be served by accountability in
judicial decision-making concern the quality of individual decisions, and
community acceptance of the outcome of the judicial process.
At the level of political philosophy, democracy demands that all forms of
governmental institutions are, in an appropriate manner, and to a sufficient
degree, responsible and ultimately answerable to the citizens.
The matter needs to be considered, not only in terms of the position of
individual judges, but also in terms of the courts of which they are members
and of the judiciary as a collective body or institution. For courts, effective
functioning includes dealing with the business of the court with due despatch
and by procedures which are fair and which serve the ends of justice, and which
allow for reasonable access to the courts by citizens. For the judiciary as an
institution, effectiveness includes the maintenance of the rule of law and the
preservation of a just society.
In considering the forms of accountability applicable to the functions of the
judicial branch of government, it is convenient to begin by examining the
accountability that presently exists. As might be expected, this varies with
the function in question. Judicial consideration of this issue usually
distinguishes between two functions: adjudicative and administrative.[7] This distinction is not entirely satisfactory.
An increasing number of modern judicial activities are not easily assigned to
one category or the other. Moreover the distinction tends to overlook the third
level of consideration; the judiciary as an institution. However, it provides a
useful starting point for discussion.
Adjudicative Accountability
The inter-relationship between independence and accountability is demonstrated
by their application to the making of judicial decisions. Paradoxically, they
both lead to similar results.
The fact that judges are not amenable to sanctions administered by the
executive government on account of unpopular decisions is generally regarded as
an aspect of judicial independence; and so it is.
The most obvious sanction that might be imposed by a government aggrieved by a
judicial decision is dismissal. The great constitutional battles in England
which secured the result, established in the Act of Settlement, that judges
hold office, not at the pleasure of the king, but during good behaviour, were
fought in the context of a struggle for power between parliament and the king.
It was the capacity of the judiciary to make binding decisions determining the
limits of power as between parliament and the executive that originally made it
so important for parliament to secure the judiciary's independence of the
executive. Much of the civil litigation that comes before the courts is
litigation between citizens and the executive government. All criminal cases
are fought as contests between the executive government and an alleged
offender. The importance of securing the independence of the judiciary from the
executive government is self-evident.
The same conclusion follows, not from the application of the principle of
independence, but from the proper application of the principle of
accountability, once the purposes of accountability are clearly understood. One
objective of accountability is good decision-making. Such decision-making in
disputes between citizens and the executive government is promoted by leaving
decisions in the hands of persons who have nothing to hope for and nothing to
fear from the government. Another objective of accountability is to secure
public acceptance of such decisions. The same follows. There is nothing in
democratic theory which requires that judges be accountable to the executive
government; the principle of the separation of powers dictates the opposite.
Independence and accountability are not opposed, but work towards the same
end.
There are long-established principles, governing the way in which judges
perform their function of decision-making. These principles are aimed at
serving the objectives of accountability. Judges are required to make their
decisions only after they have heard full argument on both sides of the
question. Judicial proceedings must be conducted in public. Reasons for
decisions must be given, and must be stated publicly. Such reasons are
routinely subject to appellate review.[8]
The above features of the judicial process are so firmly entrenched in the
Australian legal system that it is easy to take them for granted, and overlook
their significance. Consider, for example, the duty to give reasons for
judicial decisions. When this duty is related to the objectives intended to be
served by accountability its importance is apparent.
First, the existence of an obligation to give reasons promotes good
decision-making. As a general rule, people who know that their decisions are
open to scrutiny, and who are obliged to explain them, are more likely to make
reasonable decisions. Second, the general acceptability of judicial decisions
is promoted by the obligation to explain them. Third, it is consistent with the
idea of democratic institutional responsibility to the public that those who
are entrusted with the power to make decisions, affecting the lives and
property of their fellow citizens, should be required to give, in public, an
account of the reasoning by which they came to those decisions.
This form of accountability is not to be taken lightly. The requirement of
giving a fully reasoned explanation for all decisions has profound importance
in the performance of the judicial function. Apart from judges, how many other
decision-makers are obliged, as a matter of routine, to state, in public, the
reasons for all their decisions? Most decisions, other than those made by
judges, are made by people who may choose whether or not to give their reasons.
Many such decision-makers strongly resist attempts to oblige them to give
reasons. Nor is it the case that reasoned decision-making is required of all
judges, even in communities whose legal and cultural background is similar to
our own. In the United States, for example, appellate courts commonly dispose
of appeals either without giving reasons at all, or after a statement of
reasons in the most abbreviated form. That, however, is not our tradition. The
reasoning behind various judicial decisions is often the subject of widespread
comment, both learned and popular. Unfavourable comment may range from
restrained criticism to violent abuse. Even so, judges must submit to the
discipline of exposing and explaining their reasoning.
Similarly, the requirements that judicial proceedings be held in public, and
that judicial decisions be subject to appellate review, are forms of
accountability of substantial importance. Such requirements promote good
decision-making and the acceptability of the outcome of the judicial process,
and they are consistent with the idea that democratic institutions should
conduct their affairs in a responsible manner. People who live in a community
where justice is administered in public may easily overlook the fact that there
are many places where that is not so. So much decision-making, including
governmental decision-making, takes place in private, that the public need to
be reminded of how unusual the judicial process is in this respect.
The ultimate form of accountability, which is consistent with the principles
considered above, lies in the capacity of the Governor-General, or the
Governor, to remove judicial officers upon an address of both Houses of
Parliament.[9] This is the method of removal
that has applied to superior courts in England since the Act of Settlement,
although the requirement of an address of parliament did not apply consistently
to colonial judges until the second half of the 19th century.[10] Such removals have been rare, but one occurred recently in
Queensland.[11]
These are the formal mechanisms of accountability applicable to Federal judges,
and to the judicial officers of the States and Territories of Australia, with
the notable exception of New South Wales.[12] The position in New South Wales will be examined below.
It is important to bear in mind less formal, but nonetheless, significant,
kinds of accountability. The corollary of the obligation of judges to conduct
their business in public, and to give reasons for their decisions, is that they
are exposed, and are regularly subjected to, public comment and criticism. The
practical importance of this should not be underestimated, especially in an age
when attitudes towards authority are no longer deferential, and are frequently
the opposite. Being a judge is not a suitable occupation for the thin-skinned.
It is commonly, and erroneously, supposed that the law of contempt of court
exists to protect judges from criticism. This belief is false, and based on
ignorance of the law.[13] Public obloquy is a
powerful sanction, and one to which judges are exposed by reason of the
circumstances in which they operate.
Another matter of practical importance is peer review. This exists in a formal
way in the appellate procedures to which judicial decisions are subject, but it
also has a significant informal aspect. Judges generally value the good opinion
of their peers, and are sensitive to collegiate disapproval. There is nothing
surprising about this; when one considers the responsibilities with which
judges are entrusted, it is to be expected that most of them would be the sort
of people who would take seriously the opinion of right-thinking members of
their profession. That opinion may be manifested, for example, in a rebuke from
a Chief Justice, or even a suggestion that retirement be considered; something
that most judges would take very seriously indeed.
Any description of mechanisms of judicial accountability must also have regard
to immunities. 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.[14] The existence of this immunity has not gone
unquestioned.[15] However, it is not
understood that there is any current move in Australia to abolish or qualify
it.
Such an immunity is not unique to judges. In the litigious context, it also
extends to advocates, jurors and witnesses. In the wider governmental context,
no-one seriously suggests that, in the interests of accountability, a Treasurer
ought to be liable in damages for economic harm suffered as a consequence of an
ill-advised decision; nor are parliamentarians at risk of being made liable in
damages for the consequences of ill-considered legislation (especially since
such a liability could only be brought into existence by an Act of
Parliament).
A lesser known immunity of judges is their immunity from being obliged to
submit to investigation of their reasons for their decisions. In a recent
Canadian case[16] the Supreme Court of Canada
considered this immunity in the context of a Royal Commission established to
enquire into the charging, and prosecution, of a person accused of murder, and
his subsequent conviction and sentencing. It was held that the legislation 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.[17]
The Supreme Court of Canada said:[18]
"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[19] and
Beauregard v Canada.)[20]
Of course, such a privilege may be abrogated by valid legislation. This is not
the occasion to explore the interesting question of the potential scope for
such legislation, having regard to the principle of separation of powers,
especially in the Commonwealth area.
As was noted above, to any description of the formal mechanisms of judicial
accountability in Australia there needs to be added an account of the position
that applies in New South Wales. Since 1986, New South Wales has had a Judicial
Commission which receives and considers complaints against judicial officers.
This is a precedent that has not been followed either by the Australian
Government, or by the governments of other States and Territories, with the
exception, to an extent, of the Australian Capital Territory.
At the time the Judicial Commission was established, it was said to have been
modelled on similar organisations which have been set up in most States of the
United States of America. Parliamentary debates suggest that California was the
model particularly in mind.[21]
When the Judicial Officers Act 1986 was originally enacted, the tenure of State
judicial officers was defined by s4 of that Act. Judicial officers remained in
office during ability and good behaviour, and could not be suspended or removed
except in accordance with the Judicial Officers Act, or another Act of
Parliament. Section 4 has since been repealed, and, by the Constitution
(Amendments) Act 1992, (Act No 106 of 1992), a new Part 9, dealing with the
judiciary, was included in the Constitution Act 1902 of New South Wales.
Section 53 of the Constitution Act provides that no holder of judicial office
can be removed from office except as provided by Part 9. It goes on to provide
that the holder of a judicial office can be removed by the Governor on an
address from both Houses of Parliament seeking removal on the ground of proved
misbehaviour or incapacity. By definition, holders of judicial office include
judges, masters and magistrates.
The functions of the Judicial Commission, which was established by the Judicial
Officers Act 1986, are not limited to dealing with complaints against judicial
officers. For example, the Commission also has an important role in relation to
judicial education. It can justifiably claim leadership in Australia in that
field. However, it is the complaints function that is of present relevance.
There are eight members of the Judicial Commission; six being official members,
and two being appointed on the nomination of the Attorney General. The official
members are the Chief Justice of the Supreme Court, the Chief Judges of the
Industrial Court, the Land and Environment Court, the District Court and the
Compensation Court, and the Chief Magistrate. Of the appointed members, one is
a legal practitioner, and the other is a person of high standing in the
community. The Chief Justice is ex officio President of the Commission.
Any person may complain to the Commission about a matter that concerns the
ability or behaviour of a judicial officer. (It seems reasonably clear that, in
this context, ability means the same thing as capacity.) As might be expected,
having regard to the tenure of judicial officers, the Act draws a fundamental
distinction between complaints about matters which could justify parliamentary
consideration of the removal from office of a judicial officer, and other
complaints. Complaints of the former kind are defined as serious.[22] Other complaints, unless they are summarily
dismissed[23] must be classified as minor.
This statutory classification can give rise to misunderstandings, because
complainants, not unnaturally, may well regard matters as serious even if they
could not, viewed objectively, be considered as justifying parliamentary
consideration of the removal of a judicial officer.
Complaints which are classified as serious go to a Conduct Division constituted
either by three judicial officers, or by two judicial officers and a retired
judicial officer.[24] The ultimate power of a
Conduct Division is to make a report to the Governor, setting out its decision
as to whether the complaint is wholly or partly substantiated, and whether the
matter could justify Parliamentary consideration of the removal of the judicial
officer from office. As a rule, proceedings before the Conduct Division are in
public, although there is a discretionary power to conduct them in private.[25] If it were decided to proceed for removal of
a judicial officer, following the report of a Conduct Division, the matter
would then need to go to Parliament.
The Judicial Commission has no power to discipline or suspend judicial
officers. There is a power in the relevant head of jurisdiction to suspend a
judicial officer on an interim basis in certain circumstances. A minor
complaint may be referred to the relevant head of jurisdiction.[26] A Conduct Division may deal with a minor complaint, but
if the complaint is substantiated all it can do is to inform the judicial
officer of its opinion or decide that no action need be taken.[27]
Save for proceedings which go to the Conduct Division, and are dealt with in
public, all of the proceedings of the Judicial Commission are to be conducted
in private. Although the Commission makes an annual report to the Attorney
General, its reports do not make public that which the Act requires to be
treated as private.[28] The information to be
included in reports is limited to information about the number of complaints
received and disposed of in various ways, and about the nature and pattern of
complaints.[29]
Before the Commission classifies a complaint as minor or serious and, in the
latter case, refers it to a Conduct Division, the Commission is obliged to
conduct a preliminary examination of the matter itself.[30] Following that preliminary examination, it is obliged
summarily to dismiss the complaint if it is of the opinion that one of a number
of circumstances exists.[31] One such
circumstance is that the person complained about is no longer a judicial
officer. Complaints are to be summarily dismissed if the Commission is of the
opinion that they are trivial, or frivolous, vexatious, or not in good faith,
or if there was available a satisfactory means of redress, or of dealing with
the complaint, or the subject matter of the complaint. The most obvious example
of the latter possibility is a right of appeal. There are also other grounds
for summary dismissal.
A substantial majority of the complaints that have been made to the Judicial
Commission have been summarily dismissed.[32] A small number have been classified as minor and referred to the head of
jurisdiction, and an even smaller number have been referred to a Conduct
Division. Since 1986, six complaints have been referred to a Conduct Division.
Two were classified as minor and were ultimately held to be baseless. One,
relating to medical capacity, was classified as serious. A report was forwarded
to the Governor and the judicial officer resigned. The remaining three were
classified as serious and in each case the judicial officer resigned, either
before the Conduct Division commenced to deal with the matter, or before it
concluded its deliberations.
The number of complaints received by the Judicial Commission is not large.
There are, in New South Wales, 273 judicial officers and they deal with
approximately 300,000 cases annually. In the year 1993-1994, there were 31
complaints against judicial officers. This is fairly representative of past
years.
Most of the complainants are unsuccessful parties to litigation. Some matters
have been referred to the Commission by the Attorney General, and there have
been complaints made by the Bar Association and the Law Society. The majority
of complaints involve allegations of actual or apprehended bias, or failure to
give a fair hearing. In the case of most court proceedings in New South Wales,
there is either a written transcript, or a tape recording of the proceedings.
The Commission regularly resorts to this source of information when
considering, for example, allegations of discourtesy, or failure to give one
party to the proceedings an opportunity to present his or her case.
In considering the nature of matters that come before the Judicial Commission,
it is important to bear in mind two things. First, the Commission is not a
forum for the administration of criminal justice. If an allegation of criminal
conduct were made against a judicial officer, then the officer would be
entitled to due process of law and, in the ordinary course, the matter would be
taken up by the prosecuting authorities. Of course, the Judicial Commission
might have to deal with the aftermath of a successful prosecution or,
alternatively, its own enquiries in relation to a complaint might disclose
information which might have to be referred to other authorities. Second, the
existence of the Independent Commission Against Corruption has a bearing upon
the work of the Commission. Allegations of corruption against judicial officers
would ordinarily fall to be investigated by the Independent Commission Against
Corruption rather than the Judicial Commission. In practice, there are
arrangements under which the Independent Commission Against Corruption is kept
regularly informed of complaints to the Judicial Commission which are of such a
nature that they ought to be brought to its attention. There is routine liaison
between the two Commissions. In the result, it would not normally be expected
that the Judicial Commission would find itself dealing with allegations of
criminal conduct, or allegations of corruption that would properly come before
the Independent Commission Against Corruption.
The Commission provides what is regarded by many as a useful mechanism for
formal consideration of problems that in the past had to be dealt with
informally and, sometimes, in a rather awkward fashion. Most of the matters
that now come to the Judicial Commission would, in earlier times, have arrived
on the desk of a Chief Justice or other head of jurisdiction, or an Attorney
General. Presumably that is what still happens in other Australian
jurisdictions.
An evaluation of the work of the Judicial Commission could require a comparison
with what occurs in other jurisdictions, and, because that is not publicly
known, such a comparison is not possible. It is, for example, not possible to
say whether the existence of a formal complaints mechanism promotes complaints.
Perhaps it merely channels into one body complaints that in the past, or in
other jurisdictions, would be made to heads of jurisdiction, or an Attorney
General, or members of parliament, or the press. There is nothing to prevent a
person who complains to the Judicial Commission from, at the same time,
complaining to somebody else. I have no doubt that some complainants also
approach the Independent Commission Against Corruption or members of
parliament.
One thing, however, is clear. As a result of the existence, since 1986, of the
Judicial Commission, and, more recently, the Independent Commission Against
Corruption, judicial officers in New South Wales are subject to formal
procedures of accountability significantly different from those that apply to
their counterparts in other Australian jurisdictions. To an outside observer,
this difference between the system of accountability that operates in
Australia's largest jurisdiction, and the system that operates in the other
Australian jurisdictions, must be striking.
In an article published in 1990[33] the
present Chief Judge in Equity of the Supreme Court of New South Wales
criticised the current arrangements in New South Wales and suggested, as an
alternative, the establishment of Australia-wide machinery for the
determination by a judicial tribunal of the existence of misbehaviour or
incapacity which could warrant a judge's removal from office. I am not aware of
what, if any, consideration has been given by any Australian government to
those carefully formulated proposals.
To summarise, the formal mechanisms of accountability that exist in relation to
the Australian judiciary generally are to be found in their obligation to
operate in public, and to give reasons for their decisions, and in the exposure
to appellate review of their decisions, together with the fact that they may be
removed from office by the Governor-General or Governor upon an address of the
relevant Houses of Parliament. In the case of judicial officers who are members
of a New South Wales State court, to that must be added the complaints
mechanisms of the Judicial Commission of New South Wales and the Independent
Commission Against Corruption. There are, in addition, important informal
mechanisms of accountability, especially exposure to public criticism, and peer
review.
Administrative Accountability
Judicial discussion of the related subjects of independence and accountability
ordinarily distinguishes between the performance of adjudicative and
administrative functions.
At the two extremes, this distinction is useful and important. If the making of
a judicial decision in an individual case is taken to be one extreme, then the
other extreme would be the handling of finances by courts which enjoy financial
autonomy. For practical purposes, and putting to one side the special case of
South Australia, it is only the courts in the Federal justice system that have
such autonomy. The High Court of Australia, the Federal Court of Australia, the
Family Court of Australia, and the Administrative Appeals Tribunal, operate on
one-line budgets, and, except in the case of the High Court, where the
responsibility is collective, the Chief Justice of the court (or President of
the Tribunal) has the legal responsibility for making decisions as to the
expenditure of the funds provided by the government. In the case of the State
courts, with the exception of South Australia, from a financial point of view
the courts are administered by a department of the executive government
responsible to a Minister. The judiciary have no capacity to make decisions
affecting the allocation, or expenditure, of funds. In particular, they have no
capacity to make decisions on issues as to priorities which arise in that
connection. That puts them at a substantial disadvantage by comparison with
their Federal counterparts in terms of their ability to make administrative
improvements, but it also spares them questions of financial accountability.
It remains to be seen, in relation to the Federal courts, exactly what
practical form financial accountability will take. Of course, the courts are
required to make reports to the relevant Minister on their expenditure of
funds, and they are subject to audit. So long as nothing untoward occurs in
relation to such expenditure, questions of accountability are, for practical
purposes, largely limited to matters of adequate reporting. The difficult
question, that one hopes will never have to be answered, is what would occur in
the event of some alleged misapplication of funds? This could arise, for
example, if it were suggested that an improvident contract were entered into in
relation to the acquisition of supplies. In a situation where it is the Chief
Justice who is responsible for the management of the resources made available
to a court, it is not easy to foresee exactly what practical form of
accountability would operate in such a case. Would it be political
accountability on the part of the Minister responsible to Parliament? Or would
there be a more direct form of accountability on the part of the Chief Justice?
And, if so, exactly what form would that take?
These are novel questions for the Australian judiciary, but there is United
States experience which may be relevant. There, there are many courts,
including Federal courts, which enjoy financial autonomy, and heads of
jurisdiction regularly deal directly with local legislatures in relation to
finances.
The answer may be that, just as the Parliament has conferred financial autonomy
on Federal courts, so it would lie within the power of Parliament to take such
autonomy away. This would appear to be the ultimate sanction for abuse of such
autonomy. No doubt, when Parliament initially gave such autonomy to, for
example, the Chief Justice of the Federal Court of Australia, it was well aware
of the implications of the recipient's tenure of office. Conferring financial
independence upon a person who can only be removed from office by the
Governor-General upon an address of both houses of parliament is something
rather different from conferring financial independence upon a person who can
be removed from office by a Minister. In practice, however, the problem may
never arise. Funds made available to courts are modest, and judges are likely
to be conservative in their management. Proper audit procedures, and adequate
requirements as to reporting, should serve the purpose.
Whilst the distinction between the adjudicative and the administrative
functions of judges is useful and relatively easy to apply when dealing with
cases at one extreme, it must be acknowledged that there is a large
intermediate area of judicial activity which is not easily assigned to one
category or the other. One of the problems affecting the subject of judicial
independence and accountability in modern times is that this uncertain area
also happens to be a growth area.
The authorities establish that certain kinds of activity that are sometimes
described as administrative are, in terms of independence and accountability,
assimilated to the position of judicial decision-making. The simplest example
is the assignment of cases to judges.[34] Clause 14 of the United Nations Basic Principles of the Independence of the
Judiciary provides that the assignment of cases to judges within a court is an
internal matter of judicial administration. The reasons for this are obvious
enough. Just as external interference in the actual making of judicial
decisions is repugnant to our notions of judicial independence, so is such
interference with decisions as to the assignment of judges to hear particular
cases. This can often be a sensitive matter, especially from the point of view
of public perception, and the community demands assurance that decisions made
by Chief Justices, or other relevant heads of jurisdiction, or heads of
Division, on the assignment of cases are just as free from outside pressure as
decisions of cases themselves. In Valente v The Queen[35] Le Dain J referred to the collective independence of
tribunals as extending to such matters directly affecting adjudication as
assignment of judges, sittings of the court, court lists and allocation of
court rooms. It appears to be generally accepted that the principle of
separation of powers would, either by law or convention, protect the assignment
of cases to judges from any wider form of accountability than applies to
judicial decision-making.
A more difficult situation, however, exists in relation to certain other
administrative functions that are usually confided either to the Chief Justice
or to committees or bodies of judges within a court structure. The Canadian
authorities assimilate decisions as to times and places of court sittings to
judicial decision-making, although the reason for that is not as obvious as in
the case of assignment of cases. One of the reasons why this is becoming a
problem area is that, with greater public interest in the efficiency of the
operation of the justice system, wider concern is being shown about aspects of
the arrangement of court business that were previously regarded as matters of
judicial administration, and left to the judges themselves. Court rules and
procedures, techniques of case management, listing arrangements, the giving of
priorities to certain types of case, and a number of other administrative
matters are all capable of having a substantial effect upon the efficiency with
which a court disposes of the business that comes to it. Some of these are
matters where, either for legal or practical reasons, the decision-making has
to be left to the judges themselves. However, not all such matters come within
that category. Moreover, as Ministers find that they are being called to
account, in Parliament and in the public arena, for the degree of efficiency
with which the court system operates, they are sometimes frustrated by their
inability to deal directly with what are regarded as problems giving rise to
inefficiency.
This, in recent times, has become a difficult area of the relationship between
the executive and judicial branches of government. The executive government has
the power of the purse, but although, at least in State jurisdictions, the
judiciary have no control over the application of financial resources, for
practical purposes they have effective control over the other administrative
matters of the kind referred to above.
What form of accountability should exist in relation to such matters? If a
State Attorney General were challenged as to the adequacy or efficiency of the
arrangements that exist in relation to circuit sittings of a Supreme Court,
then the Attorney General would presumably respond that that is a matter within
the control of the Chief Justice. In New South Wales, at least, it is the Chief
Justice who decides the times and places at which the Supreme Court will sit.
The Supreme Court Rules so provide.[36] However, decisions as to circuit arrangements are of considerable political
sensitivity. Local members of parliament are actively lobbied by their
constituents, and proposals to vary circuit arrangements attract the keen
interest of local lawyers and citizens. Again, the arrangements that exist
within a court as to the priorities that will be allocated to certain types of
case are usually determined by the Chief Justice, or the relevant head of
jurisdiction. In a time of scarce resources and overburdened court lists, a
decision that, for a certain time, a specified degree of priority will be given
to criminal cases over civil cases can have important consequences for
litigants.
In the past, there has been no procedure of accountability in relation to such
matters. Pressures of public comment and opinion are, of course, significant.
Members of Parliament do not hesitate to complain if they think their
constituents are being treated unfairly in respect of allocation of circuit
time, for example. The interest of the press can be aroused in relation to such
subjects. On the other hand, it is unlikely, even in New South Wales, that a
bona fide decision on such a subject would attract the attention of the
Independent Commission Against Corruption, or the Judicial Commission.
There is, however, another form of accountability that has in recent years been
voluntarily adopted, and that is of particular significance in relation to
matters of this kind. Since 1990, the Supreme Court of New South Wales has
published an Annual Review. The matters referred to in it are not matters in
respect of which the judiciary is under a legal obligation to report to
anybody. However, it is acknowledged that the public has a legitimate interest
in being informed about the decisions that are taken concerning administrative
matters of the kind to which reference has been made. The Annual Review
contains a substantial body of detailed information about the internal
administration of the court. The work of each Division of the court is covered;
statistics as to progress in dealing with the business of the court are set
out; comparative figures appear year-by-year; and there is an explanation of
the reasons for various decisions of an administrative nature. The problems
confronting the court are discussed, and the manner in which they are being
addressed is explained. Similar information is now published by the other
courts in the State court system. A number of other Australian jurisdictions
adopt similar procedures.
This acceptance of the public's entitlement to information about the way in
which the courts function is also reflected, within the New South Wales court
system, in the relatively recent appointment of a Public Information Officer of
the Supreme Court of New South Wales. This appointment has been a considerable
success, and has been generally welcomed by the media. The officer is a ready
source of information about court matters of which journalists take extensive
advantage. She also prepares information for the public about the operations of
the courts, and the judiciary as an institution. There is also, in New South
Wales, a Civil Justice Research Centre, which is an operating division of the
Law Foundation. That body conducts research into, and regularly publishes
information concerning such matters as the costs of litigation, the practical
effect of case management procedures, and the demographics of users of the
court system. Sometimes such information is both revealing and surprising.
For example, an assertion that is repeated so frequently that it has come to be
regarded as axiomatic is that only rich people or poor people can afford to
come to court; middle-income earners have no access to justice. After puzzling
as to how to reconcile this article of faith with what I was personally
observing as to the people who were actually litigating in the Supreme Court,
at least in personal injury cases, I asked the Centre to prepare, after
empirical research, a profile of the users of the Common Law Division of the
Court. The study found that the average annual income of plaintiffs was $33,636
for men and $24,758 for women. This was fairly typical of the whole community.
Of course, the explanation of this result is related to the nature of the work
of the Division and the fee-charging practices of lawyers who operate in that
field. The point is that an exercise of that kind can be useful and
informative, and the work of the Centre is a valuable aid to informing the
public about the way in which the justice system works in practice.
In recent years there has been a great deal of change in the approach taken by
the courts towards the provision of information as to how they operate. This is
accountability of the responsiveness, rather than the control, variety. Many of
the subjects in question are of such a nature that the purposes to be served
both by independence and by accountability require that the courts be seen to
operate in a manner that is free from political interference. At the same time,
the problem of access to justice is, amongst other things, a political issue.
The problem is how to reconcile the imperative of accountability with the
circumstance that decision-making powers which have an important bearing on
access to justice are vested in people who have security of tenure and who must
be, and appear to be, beyond the reach of political influence. The best
practical solution to the problem lies in the recognition, by the judiciary, of
the right of the legislature, and the executive, and the public, to know what
administrative decisions are being taken by the judiciary, and why. Judges have
traditionally accepted that the corollary of their adjudicative independence is
an obligation to make their decisions openly and with full reasons. The same
reasoning must apply to their administrative independence.
As was observed in relation to financial autonomy, the ultimate sanction for
the abuse of any form of independence is its loss. Abuse of independence can
consist not merely in the making of perverse or insupportable decisions; it can
also consist in a refusal to satisfy legitimate public expectations as to the
provision of information. Although some forms of administrative independence
are like adjudicative independence, such that their removal would require
something in the nature of a revolution, others are not. They could be taken
away. It is, therefore, in the interests of the judiciary and of the public
that, whilst not submitting to external control in these matters, the judiciary
behave with appropriate responsiveness, especially in relation to furnishing
information.
The Future
In a recent work[37] Dr Henry Kissinger made
the point that the original separation of powers theorists saw the concept as
dynamic; the objective was to avoid despotism, not to achieve harmonious
government. Like the economic theorists who saw the public good as served by
selfish individual competition, or the balance of power statesmen who saw
progress resulting from the pursuit by states of their self-interest, and did
not seek to avoid crises, or even wars, those who supported the separation of
powers believed that each branch of government, pursuing its own interests,
would, in the result, restrain excess. Harmony between the three branches of
government is not the natural order of things, nor is it necessarily and
unequivocally desirable. There will be constant tensions as to areas of control
and responsibility, and there will be changes in circumstances that will
unsettle previous resolutions. There is no ideal or permanent balance; rather,
there is a relationship that constantly changes, although the rate of change
increases or abates at various times.
For the purposes of the present topic, we are living in a time of accelerated
change. The reasons are numerous. The relative powers of the legislature and
the executive constitute a subject of current interest, and it is unlikely that
the role of the judiciary would be left unquestioned in a re-examination of
that subject. We live in an age of consumerism, and of demands for increased
access to justice. These subjects are of political concern, and politicians are
unlikely simply to pass them over to the judges to deal with. Insofar as judges
exercise powers that bear upon the matter, there is inevitably a demand to call
them to account. We also live in an age that questions, rather than accepts,
all forms of authority.
It is inevitable that existing arrangements will continue to be under scrutiny.
It was originally an alliance between parliament and the judiciary, against the
executive, that established the fundamentals of those arrangements.
Parliament's strategic interest will continue to be to shore up the judiciary's
independence of the executive. There are three main possible sources of threat
to the independence of the judiciary. The first would arise where the executive
dominated parliament. The second would arise where parliament, responding to
political expediency, preferred tactical to strategic objectives. The third
would arise where, in the estimation of the public, the judiciary no longer
deserved their independence.
Tensions between the three branches of government will certainly involve,
amongst other things, demands for increased judicial accountability. Where
those demands are considered rationally, attention will need to be directed to
the objects of accountability. How will a particular proposal promote effective
decision-making of an adjudicative or administrative kind? How will it affect
the acceptability to the public of the judicial process or the court system?
How, for example, will it affect the impartiality of the judge and the judicial
process? How does it relate to our political theories of what is
constitutionally appropriate?
It is beyond question that, in terms of less formal accountability, there has
been greater progress in the last five years than had occurred in the previous
fifty years. And in New South Wales in the last ten years there have been
substantial changes in terms of formal accountability.
Nevertheless, there is constant pressure for more and more accountability.
From time to time suggestions are made that, as in many State jurisdictions in
the United States, Australian judges should be subject to the process of
popular election. Those suggestions frequently come from people who are not
fully informed as to what occurs in the United States. If, by saying nothing
more about them, I appear to be less than respectful towards such proposals, it
is to be hoped that it will not be inferred that this is unintentional.
There is, however, another form of quasi-accountability that has gained serious
support in some quarters. Candidates for judicial appointment in the United
States, State and Federal, are being increasingly required, by the process of
election or appointment, to parade their "attitudes" for popular and
governmental consideration. Insofar as this applies to people before
appointment it seems to involve some kind of advance accountability.
Governments are occasionally exhorted to establish procedures of this kind in
Australia so that they, and the public, may know the calibre of prospective
appointees. The topic of judicial appointment is the subject of another paper
at this Conference, and I will not trespass too far into the area. It may be
noted, however, that it is what is asserted to be the lack of accountability of
judges after appointment that is advanced in support of suggestions of the kind
just mentioned. It is to be hoped that this paper will lead to some
re-examination of the assumption that there is a lack of accountability. The
objectives of accountability identified at the commencement of this paper (good
and acceptable decision-making) must also be borne in mind.
If it be agreed that the public acceptability of the outcome of the judicial
process is a primary objective, and that the reality and the appearance of
impartiality of adjudication is a key element in whatever arrangements are
devised, then this must weigh heavily against such proposals. If candidates for
judicial office were required to submit, for the prior approval of the
executive government, their attitudes towards, or opinions upon, issues likely
to arise for judicial decision, then this would surely undermine confidence in
judicial impartiality and independence.
To require potential appointees to commit themselves, publicly, to views on
issues likely to arise for their decision as judges, would be to subvert the
theory that, following appointment, they will decide cases impartially, after
hearing full argument from the interested parties. And if prospective
appointees are to be examined in advance, by persons including representatives
of the executive government, presumably the subjects on which their views will
be most closely investigated will be those which concern matters likely to be
of interest to the government, including matters likely to arise in litigation
to which the government is a party. Citizens who are in dispute with the
government will have the satisfaction of knowing that the judges who decide
their cases have passed through a formal procedure designed to assure the
government, prior to appointment, of their ideological soundness.
It may be argued that under the present arrangements it would be naive to
assume that governments do not seek to inform themselves, so far as they are
able, of the opinions of people being considered for appointment. No doubt they
do. It does not follow, however, that we should institutionalise a process
calculated to mock notions of judicial impartiality and independence.
There is a trend, which will continue, towards the formulation of corporate
plans or charters for courts. This is discussed in the recent Access to Justice
Report published by the Sackville Committee (p350-359). I have nothing to add
to the discussion of the subject in that Report.
The development of time standards is a subject of significance for the
institutional accountability of courts and the judiciary. It is also a subject
that raises, in an acute form, the problem of the overlapping responsibilities
of all three branches of government. To illustrate the point, let me take an
example from North American experience. In the United States, both in the
Federal and State jurisdictions, and in Canada, for reasons that need not
presently be elaborated, there are time limits within which persons accused of
crime must be brought to trial. In some cases those time limits are, at least
by New South Wales standards, quite strict, and if they are not adhered to then
an accused person must be set free. They can, of course, be waived by an
accused. It would be possible, in an Australian jurisdiction, for a legislature
to enact similar legislation, or for a court to declare that it aspired to
bring all persons to trial within a specified time. Two questions would need to
be addressed. The first is the question of resources, and the second is the
question of the consequences of failure to comply with the relevant time
standard.
It may be very easy for the judges of a court to agree that, to the extent of
the resources made available to them, they would establish procedures to
endeavour to see that all persons accused of crime come to trial within a
specified time. But what would be the value of such an aspiration unless it
were accompanied by a commitment on the part of the executive government to
provide the resources necessary to achieve that end? And what would be the
sanction for failure to achieve the result unless, for example, the legislature
were willing to enact legislation to the effect that persons not brought to
trial within the specified time should be permitted to go free? It is not
intended to suggest that there is no answer to those questions, but they
require careful consideration.
Time standards are a matter that require co-operation between the various
branches of government, and co-operation of that kind has, in the past, not
been conspicuous. One of the principal reasons for inefficiencies that have
burdened the justice system in the past, and for the difficulty in getting rid
of them, is a kind of stand-off that has existed between the executive and the
judiciary. This has sometimes been dignified as a proper regard for
independence, but that is over-generous. In truth, the capacity of the courts
to function with reasonable efficiency depends upon a combination of factors,
some of which are under the control of the legislature, some of which are under
the control of the executive, and some of which are under the control of the
judiciary.
It is only when we face up to the implications of that problem that a way
forward will emerge. It is easy for the judiciary to take the attitude that
they will simply decide cases according to law, and by just procedures, in the
manner and to the extent to which the resources provided by the executive
government enable them to do so. If resources are inadequate, they are not to
be blamed. It is easy for the executive government to say that the judiciary
are provided with funds, and it is up to them to devise and implement
procedures that will enable those funds to be expended in such a way that all
citizens have reasonable access to justice. It is easy for the legislature to
say that the executive and the judiciary between them must provide access to
justice or answer to the elected representatives of the people. Ultimately,
however, the problem is to find a way of identifying and combining in a
suitable fashion the responsibilities of the three branches of government.
The judiciary's best answer to pressure for accountability involving control of
the judiciary lies in embracing that form of accountability which involves
responsiveness. The community accepts, and insists upon, adjudicative
independence, so long as judges function openly and explain their decisions.
Similarly the community will allow, and come to demand, administrative
independence, but only so long as judges function in that area with the same
openness. It is a collective responsibility of the judiciary to see that the
community values judicial independence and, at the same time, to meet the
legitimate expectation that judges, in appropriate ways, give an account of
themselves.
FOOTNOTES:
[1] Independent Commission Against Corruption
Act 1988, ss8, 9; Greiner v Independent Commission Against Corruption (1992) 28
NSWLR 125 at 129
[2] The correlative concept of power has been
seen as involving a continuum between influence and domination. P H Partridge,
"Some Notes on the Concept of Power", (1963) 11 Political Studies 107-125,
referred to in Thynne and Goldring, "Accountability and Control", p2.
[3] Cappalletti, "Who Watches the Watchmen?", 31
American Journal of Comparative Law, p1.
[4] Supra, p60.
[5] Supra, p61-2.
[6] e g "Corporate Management in Australian
Government", Centre for Australian Public Sector Management, Brisbane, Ed.
Davis, Weller-Lewis, Chapter 11, "Corporate Management and Accountability :
From Effectiveness to Leadership", (John Uhr); Thynne and Goldring,
"Accountability and Control"; Wanna O'Faircheallaigh and Weller, "Public Sector
Management in Australia", Ch 17.
[7] e g Mackeigan v Hickman [1989] 2 SCR 796.
[8] Scott v Scott [1913] AC 417; John Fairfax
& Sons Ltd v Police Tribunal of NSW (1986) 5 NSWLR 465; Kitto, The Rt Hon
Sir Frank, KBE, "Why Write Judgments?", 1992, 66 ALJ 787.
[9] e g The Constitution of the Commonwealth of
Australia, s72; Constitution Act (NSW) s53.
[10] An interesting examination of this history
is to be found in Peter A Howell, "The Boothby Case", a Masters Thesis prepared
for the University of Tasmania in 1965.
[11] In the case of Mr Justice Vasta.
[12] The Australian Capital Territory has, by
the Judicial Commissions Act 1993, provided for the establishment of ad hoc
tribunals but none has yet been constituted.
[13] Attorney General for NSW v Mundey [1972]
2 NSWLR 887 at 905-910.
[14] Sirros v Moore [1975] QB 118; Moll v
Butler (1985) 4 NSWLR 231; Yeldham v Rajski (1989) 18 NSWLR 48.
[15] e g Abimbola A Olowofoyeku, "Suing
Judges: A Study Of Judicial Immunity", 1993, Clarendon Press, Oxford.
[16] Mackeigan v Hickman [1989] 2 SCR 796.
[17] Knowles' Trial (1692) 12 How. St. Tr
1179.
[18] [1989] 2 SCR 830.
[19] [1985] 2 SCR 673.
[20] [1986] 2 SCR 56.
[21] For a general description of similar
institutions in the United States, see Judith Rosenbaum, "Practices and
Procedures of State Judicial Conduct Organisations", published by American
Judicature Society, Chicago. For a summary of decisions, see, "Judicial
Discipline and Disability Digest", July 1986/December 1988, Ed. Mathias, Lawton
and MacManus, also published by American Judicature Society.
[22] Judicial Officers Act 1986, s30.
[23] The grounds for summary dismissal are set
out in s20.
[24] Judicial Officers Act 1986, ss21, 22.
[25] Judicial Officers Act 1986, s24.
[26] Judicial Officers Act 1986, s21.
[27] Judicial Officers Act 1986, s27.
[28] Judicial Officers Act 1986, s37. See also
s36.
[29] Judicial Officers Act 1986, s49.
[30] Judicial Officers Act 1986, s18.
[31] Judicial Officers Act 1986, s20.
[32] The details appear in the Annual Reports
of the Commission.
[33] The Hon M H McLelland, "Disciplining
Australian Judges" 64 ALJ 388.
[34] cf Rajski v Woods (1989) 18 NSWLR 512.
[35] [1985] 2 SCR 673 at 709.
[36] SCR Pt 1A r1.
[37] Diplomacy, 1994, Simon & Schuster,
New York.