Censure of judicial officials

“A judge is answerable only to their conscience”

– Kirby J

Breaking the law

  • 1985 – Chief Magistrate Murray Farquhar (R v Farquhar 1985)Farquhar pressured a fellow magistrate to drop a case against a friend
  • Charged with perverting course of justice, 4 years imprisonment
  • Previous good character = less weight, due to the public expectation that judicial officials should be of good character and integrity (abuse of trust)
  • 2008 – Justice Marcus Einfield – SC and FC Justice. Sentenced to 3 years imprisonment for making a false declaration under oath with regards to a $77 speeding ticket.
  • Committed “deliberate, premeditated perjury“, since he would be completely aware his actions were against the law.

Judicial misconduct

Our justice system requires that the courts administer that law in a fair, consistent and impartial way.

In addition, the rule of law, SoP and natural justice etc. must also play a significant part.

  • Judicial misconduct is defined as actions taken by judicial officials that threaten these features:
  • Unprofessional practices’ such as perceived bias, or excessive delay in judgements
  • Disreputable behaviour as well, as all public officials are expected to have good character and integrity

Indispensable attributes of the judiciary: competence, independence and impartiality. Plus probity.

Appointment of officials

  • Should be in consultation with State AGs, senior legal officials and societies, but ultimately appointed by GG on advice of PM and AG, as well as the Legal and Constitutional Affairs Committee – chaired by Ian Macdonald
  • Only two perceived political appointments: Barwick CJ, Murphy J, but no obvious impact on the independence of the judiciary in their decisions – they dissociate themselves from their party affiliations
  • Contrast to USA (mostly elected and very partisan, not very independent)

 

  • See 2014 controversy over the appointment of Timothy Carmody as CJ of the QLD Supreme Court.
  • The usual: detractors say it’s a political appointment due to Carmody’s support of Premier Cameron Newman and AG Jarrod Bleijie
  • Carmody was previously Chief Magistrate, DC judge and Family Court judge, and his supporters say he certainly has enough experience

Removal of officials

  • Only in extreme circumstances: HC can only be removed by both Chambers and GG under s 72
  • Only once – Justice Vasta 1989 QLD
  • 1989 – Angelo Vasta was forced to resign by Parl over allegations of corruption following the Fitzgerald Inquiry
  • However, it should be noted that there were no findings of corruption relating to his judicial role and he returned to practising at the Bar

 

  • 1998 – Vince Bruce was asked to address NSW Parl as to why his judgements had excessive delays (explained as due to depression/mental illness). He was not forced to resign by Parl, but retired shortly afterwards.

Note: A Parl Commission 1985 was established to investigate misconduct of Murphy J, following failed court attempts to convictions. The Commission was revoked when it became clear that Murphy would soon die of cancer, and he did.

Supervision of officials

  • In the past, the only way to control ‘problem judges’ were to get their colleagues to counsel them and perhaps advise them to retire
  • For very serious issues, Parl can remove a judge from office: this has only happened once
  • Justice Vasta 1989 Queensland

1986 – NSW has established a Judicial Commission made up of retired judges to supervise and investigate judicial misconduct. It is part of an internal mechanism to hold officials to account.

  • If serious misconduct has occurred, it can recommend to Parl to remove the justice
  • Has not resulted in any removals, but threat of investigation has apparently led to the ‘retirement’ of judges
  • Also helps to train and educate judges
  • Therefore, it may be effective in holding officials to account
  • No other State has created or intends to create a Commission
  • Gleeson CJ – “Exceptional level of quality with regards to its complaint handling process and holding judicial officials to account

2012 – Judicial Complaints Act; Parliamentary Commission Act

  • Sets up internal mechanisms for complaints to be handled by CJ of the Fed and Fam courts
  • Allows establishment of Parl Commissions to investigate extreme judicial misconduct

2002Establishment of the National Judicial College

  • Also made of active/retired judges
  • Serves to educate and train judicial officials

Judicial codes of conduct

  • There is very little support of judicial codes of conduct, as judges are supposed to act independently of each other and not be influenced by their peers.
  • They must arrive at their decisions based on their understanding of the application of the law, not of community pressure.

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