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Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion.
Briefing Paper No. 01/1998 by Gareth Griffith
|This paper presents a review of the present system of judicial accountability operating in NSW under the Judicial Officers Act 1986 and offers some comparative information on the relevant models of accountability in other jurisdictions. It does so against a background of what Justice Ronald Sackville has described as a sea change in public and political attitudes towards the legal profession' (page 1). |
Accountable to the law and the community: Chief Justice Brennan has said that judges cannot be accountable to the electorate as politicians are accountable: The duties of the judiciary are not owed to the electorate; they are owed to the law, which is there for the peace, order and good government of all the community'. On the other hand, the point is made that accountability is required nowadays in most areas of public life and that the judiciary should be no exception to this rule. As Justice McGarvie has acknowledged, Judges like all other officials in the community must be accountable to the community' (pages 8-9).
Judicial independence and accountability: A prevailing theme in the contemporary debate is whether the values of judicial independence and accountability are compatible, or whether they must be in a state of tension. Should accountability be viewed as a correlative obligation of independence? (page 10)
Judicial independence: The principle of judicial independence is fundamental to the rule of law and, therefore, to the liberal democratic system of government. Chief Justice Brennan has also explained that The principle of judicial independence is not proclaimed in order to benefit the Judges; it is proclaimed in order to guarantee a fair and impartial hearing and an unswerving obedience to the rule of law'. Judicial independence can be defined broadly to include the institutional independence of the courts, or more narrowly to refer to judicial security of tenure. In NSW security of tenure is entrenched under Part 9 of the Constitution Act 1902 (pages 12-13).
Judicial accountability: Standard hierarchical models of accountability are often said to be inapplicable to the judiciary. Nonetheless, it is argued that, under the Anglo-Australian system of law, important informal mechanisms operate to make the judiciary accountable to the community, notably: judges are obliged to hear argument on both sides; judges are obliged to conduct hearings in public; judges must give reasons for their decisions; and their judgments are subject to appeal. Some jurisdictions also have formal accountability mechanisms, usually in the form of permanent judicial commissions. The NSW Judicial Commission was established under the Judicial Officers Act 1986. Opinion differs as to whether such commissions detract from judicial independence (pages 14-20).
The NSW Judicial Officers Act 1986: The Act has generated a range of comments, some critical of the whole attempt to establish a formal mechanism of accountability, others focusing on perceived limitations in the legislation. Some questions to be asked are: is there sufficient lay participation? are the investigative and adjudicative functions separated adequately? should there be a periodic external review of decisions? (pages 25 and 48).
The ICAC Act 1988: Formal judicial accountability in NSW also includes the ICAC Act, under which allegations of corrupt conduct' against a judge would be investigated (page 28).
How well does the NSW system work? Confidentiality requirements make it hard to arrive at any hard and fast conclusion. The fact that a Conduct Division is presently hearing a serious' complaint in public for the first time suggests that the system can be effective. However, a determined sceptic may still find much to question in the system (pages 29-32).
Formal accountability mechanisms in the USA: Federally, the impeachment mechanism for removal is supplemented by the disciplinary methods found under the Judicial Conduct and Disability Act 1980. At the State level, it has been said that the balance between independence and accountability has been struck differently, usually in favour of accountability. To an extent the Californian Commission on Judicial Performance served as a model for the NSW Judicial Commission. Since 1994 the Californian Commission has the following courses of action available to it: dismissal of complaint; the issuing of an advisory letter to the judge concerned; private admonishment of the judge with a view of bringing the problem to the judge's attention; the issuing of a public admonishment or public censure for improper judicial conduct, typically in cases where the misconduct was serious but unlikely to be repeated; removal of a judge following a hearing, usually where there is persistent misconduct or, in cases where the judge is no longer capable of performing judicial duties, the Commission may determine to involuntarily retire the judge from office, again following a hearing (pages 33-37).
Performance evaluation programs and judicial codes of conduct are also common features of the US systems of judicial accountability (pages 37-40).
Formal accountability mechanisms in Canada: Federally, the system operates under a self-regulatory model, based on the Canadian Judicial Council. A judge can only be removed by a joint address of the Houses of Parliament upon a recommendation by the Council. All the provincial Judicial Councils have a wider range of disciplinary powers. Also, of the provincial Councils only Nova Scotia has no lay members. Ontario has six judges and six non-judges on its Judicial Council. Moreover in Ontario a Judicial Appointments Advisory Council is part of the judicial appointments process: seven of its thirteen members are lay persons (pages 40-43).
The Swedish Justice Ombudsman: One of the four Parliamentary Ombudsmen supervises the courts (pages 43-47).
Judicial appointment: A number of comparable jurisdictions have modified their procedures for judicial appointment. For example, in Ontario candidates for judicial office are interviewed by the Judicial Appointments Advisory Committee which submits its recommendations to the Attorney General. Seven of the thirteen members of the Committee are lay persons (pages 49-52).