Judges occupy an extraordinary, status-based position within the legal profession. In all contexts – including private ones – deference is accorded to judges by lawyers who may have to appear before them. Deference is displayed to higher court judges from those in lower courts whose judgments might be overturned by them. It is displayed from legal academics, who hope their work might be influential to their legal thinking. And the whole legal profession feels the responsibility for maintaining the idea that judges are of the highest integrity, in order to justify the level of power they wield in public life.
The allegations against Heydon, and the bravery of the women who have spoken up, provide us not only with a moment to change the culture of the legal profession, but with a moment to introduce an institutional change that will bring judges who behave badly to account.
At the federal level in Australia, there is no independent regulatory mechanism to deal with complaints that are made against judges – be they related to sexual misconduct or otherwise.
That’s not to say that there aren’t many ways in which the judiciary are accountable – including through appeals, the principle that judicial proceedings are conducted in public (although the extent to which this has been able to be maintained during the COVID-19 crisis has highlighted weaknesses), and, of course, as individuals through the criminal justice system.
But, unlike, for instance, the legal or medical professions, or the public service, these avenues for accountability are not designed to provide an independent, standing institutional response when an individual has a professional complaint about the conduct of a judge – be that on or off the bench.
A standing, independent complaints body with appropriate powers would ensure that there is a place for complaints to be received, the capacity to investigate them properly, and an independent body to impose penalties should misconduct be found.
It would avoid the accusation, made on Heydon’s behalf by his lawyers, that the process undertaken in his case was “conducted by a public servant and not by a lawyer, judge or a tribunal member”, “without statutory powers of investigation and of administering affirmations or oaths”, and that it may have failed to accord procedural fairness.
At present, complaints against judges must be made either to the Attorney-General or the Chief Justice of the court itself. If a complaint is made, investigated and found to be substantiated, there is no penalty short of removal of the judge. Removal of a judge can only occur if both Houses of Parliament agree to it. It is an all or nothing option subject to partisan influences and political opportunism and argy-bargy. There has never been a federal judge removed in Australia.
It is an interesting thought experiment to contemplate whether, had Heydon been a sitting High Court judge, the allegations against him would have been enough to have him removed from the bench. Maybe.
But what about if there were a similar suite of allegations against a lower-level judge? Would that have been sufficient? It would, I think, depend on the extent of media coverage, the people involved, the general political context at the time the allegations were made – and it shouldn’t.
I’m not claiming that there are pandemic levels of misconduct within the judiciary. But there are sufficient levels to require an institutional response. The allegations against Mr Heydon provide us with but one recent example. There are myriad others.
The allegations that emerged over the course of last year of incompetence, rudeness, and bias against federal circuit court judge Sandy Street and of incompetence, rudeness and unfairness against his fellow circuit court judge Salvatore Vasta provide us with two others. For months there was no institutional response to the conduct of these two judges. This was despite a number of complaints, including from the Law Council of Australia. Finally, the Chief Judge of the Federal Circuit Court, Will Alstergren indicated that the judges had agreed to undergo counselling. Some penalty.
Also last year, a Northern Territory judge, Greg Borchers, was found – for a second time – to have made comments that contained negative racial stereotypes. It was conduct that the then Law Council of Australia president, Arthur Moses SC, branded “disparaging, discriminatory and offensive, insulting and humiliating to Indigenous Australians based solely on their race”. This notwithstanding, Chief Judge Elizabeth Morris said that in the absence of a complaints framework, she could impose no sanctions. The Chief Justice of the Northern Territory, Michael Grant, called for an overhaul of the regulatory framework.
In 2013, a South Australian judge, Anne Bampton, was arrested with a blood alcohol level of 0.12, driving home from a function, after she hit a cyclist. She pleaded guilty to the criminal charge and was fined $1300. The Chief Justice Chris Kourakis took Justice Bampton off cases relating to traffic offences and sentencing offenders affected by alcohol. He issued a statement, explaining that he understood the public concerns, but that there was no further institutional penalty that he could impose.
Some states and territories have implemented independent complaints mechanisms to deal with misbehaving judges. In 2012, efforts were made to formalise the mechanism for investigating complaints at the federal level. These, however, fell far short of establishing an independent commission.
In any event, the High Court was exempt from the 2012 changes, on the basis that the High Court occupies a “special position”, and that – because the High Court sits at the apex of the judicial system – it may be called upon to determine the constitutional validity of any oversight mechanism.
What the allegations against Heydon demonstrate is the pressing need for a mechanism to receive, investigate and respond appropriately to complaints against the federal judiciary. Any oversight mechanism must extend to the High Court, and should also cover the conduct of former judges, who continue to enjoy an elevated status within the legal profession.
Certainly, such a mechanism must be established with particular attention paid to judicial independence. But such a design is not impossible, and many other countries, including Canada and the UK, have achieved this.
Its establishment would be an important step demonstrating that our legal system does not tolerate anyone acting with impunity.
Professor Gabrielle Appleby is a professor at UNSW Law. A version of this also appeared online at The Conversation.