NATIONAL JUDICIAL ORIENTATION PROGRAMME
Sydney 16 August 1998
THE ROLE OF THE JUDGE AND BECOMING A
JUDGE
The Honourable Murray Gleeson AC
Chief Justice of Australia
In the past I have, from time to time, set out to explain the
role of a judge to gatherings of parliamentarians, legal practitioners,
students, and people with an interest in public affairs. This,
however, is quite a different occasion. I am speaking to a small
group of experienced lawyers, all with a special and professional
interest in the subject, and all of whom are likely to have
some fairly well developed ideas of their own on the topic.
Most of you have already had some judicial experience, and all
of you have spent a substantial part of your professional lives
observing judges at work. My remarks to you, therefore, will
not take the form of a lecture. Rather, I will remind you of
some principles of which you are already aware, and relate those
principles to some practical observations that I hope may be
of assistance to you in your future judicial careers.
There are four aspects of judicial status or performance that
will form the basis of my remarks. These are independence, impartiality,
fairness, and competence.
Independence
The constitutional principle sometimes referred to as the separation
of powers is acknowledged, at least in theory, in most western
societies, even though its implications are in some respects
a matter of debate. The judiciary is seen as the third arm of
government, separate from and independent of the two political
arms, the legislature, and the executive. Judges maintain the
rule of law, uphold the constitution, and administer civil and
criminal justice according to law.
Because the executive government is itself a major litigant,
the independence of the judiciary from the executive government
is indispensable if there is to be public confidence in the
administration of justice. Almost all criminal cases are conducted
in the form of a contest between the executive government and
a citizen. The executive government, either directly, or through
corporations, in which it has an interest, is a party to much
civil litigation. Civil litigation is often concerned with rights
and obligations as between the government and citizens. Constitutional
cases are often fought out between different governments in
our Federal structure. Courts decide whether legislation is
valid, and determine as between governments the boundaries of
their respective powers. I think it is fair to say that the
Australian public accept that, in a dispute between the government
and a citizen which comes before an Australian court of law
the citizen will receive equal treatment. The importance of
that should not be underestimated. If it were no longer accepted,
or assumed, that citizens will receive equal treatment before
the law when in dispute with governments the consequences for
our society would be extremely grave.
Although judges are servants of the public, they are not public
servants. The tenure which they enjoy, the procedures which
are required in the case of a proposal for their removal, and
their institutional separateness from the executive arm of government,
are all aimed at securing that position. The essential obligation
of a public servant is, consistently with the law, to give effect
to the policy of the government of the day. The duty of a judge
is different. The duty of a judge is to administer justice according
to law, without fear or favour, and without regard to the wishes
or policy of the executive government. Judges, of course, give
effect to the will of parliament as expressed in legislation,
but their duty is to behave impartially in conflicts between
a citizen and the executive. There may be a big difference between
the will of parliament as expressed in legislation and the policy
of the executive government from time to time.
Most members of the community tend to regard judges as public
servants, at least until they begin to reflect upon the significance
of the principles just mentioned. Judges, however, should know
better. There is, on occasion, pressure from some quarters for
judges to be treated, or to permit themselves to be treated,
as though they were public servants. Sometimes, people in public
life express frustration or indignation at the unwillingness
of judges to conform to the policy of the executive government.
Just as nature abhors a vacuum, so there is often an institutional
bureaucratic abhorrence of independence. This is not surprising.
Independence of any kind is likely to be regarded as a threat
to a government's capacity to govern. Government would in some
respects be more efficient, and life for those in power would
be easier, if judges were public servants and were obliged to
conform to government policy. However, efficiency, and an easy
life for those in power, are not the primary aspirations of
a democratic society. Those considerations are overridden by
the demands of justice, and our community's idea of a just society
is one in which the judiciary is, and is seen to be, independent
of the executive government.
It is the duty of all judges to respect and maintain that independence.
That does not involve maintaining an attitude of abrasive antagonism
towards everyone in government. On the contrary, there is a
great deal to be achieved through appropriate co-operation between
the three arms of government. Yet, if judges do not respect
and value their own independence, no one else will.
The independence of judges should not be seen, either by the
community or by judges, as some kind of perquisite of office.
Sometimes there is an unfortunate tendency to overstate the
principle of independence and to invoke it in circumstances
where it is not, in truth, under threat. There is a tendency
in some people to turn every disagreement about the terms and
conditions of judicial service, or the funding of the court
system, into an issue of judicial independence. This creates
a degree of cynicism. Such cynicism is not always unjustified.
It debases the currency of principle if we overstate our case.
Subject to that caution, however, I would encourage all judges
to take a close an informed interest in questions relating to
the independence of the judiciary.
Impartiality
Throughout the ages, and in all societies, impartiality has
been regarded as of the essence of the administration of justice.
The image of the just judge as one who favours neither the rich
nor the poor, but gives a true verdict according to the evidence,
appears in texts going back to the origins of our civilisation.
In our post modern, deconstructionist, society, there are those
who regard impartiality as an illusion. Rejecting as fraudulent
the notion that anyone is capable of being truly impartial,
some people promote the idea that the only decent judge is one
who sets out to be actively partial, using judicial power to
address the injustices of society, redistribute assets, promote
the interests of some social group seen as worthy of support,
and administer justice, not according to law, but according
to some overriding standard existing outside the law. People
who take this approach consider that impartiality is bogus,
and the pretence that it exists, or is capable of being achieved,
is an impediment to true justice.
Judges, however, are supposed to be dedicated to the proposition
that the administration of justice requires both the reality
and the appearance of impartiality, and that both are attainable.
Anyone who does not believe that should not be a judge.
It has been wisely observed that enthusiasm for a cause is usually
incompatible with impartiality, and is always incompatible with
the appearance of impartiality.
I need say nothing to this audience about the reality of impartiality.
You have all made a sworn commitment to it. I will not insult
you by convassing the possibility that you might dishonour that
commitment.
It may be necessary, however, to emphasise the importance of
maintaining the appearance of impartiality. This is where, for
some judges, difficulties can arise.
It is essential for a judge to maintain, in court, a demeanor
which gives to the parties an assurance that their case will
be heard and determined on its merits, and not according to
some personal predisposition on the part of the judge. Human
nature being what it is, some people are better than others
at maintaining such a demeanor. I imagine that everybody here
has, at one time or another, observed the performance of a judge
who failed to live up to the ideal in this respect. In our experience
as practitioners we have all seen judges behaving well, and,
on occasion, we have seen judges not behaving well. The point
requires little elaboration, but we all have our own models
of judicial behaviour.
Modern lawyers, litigants, and witnesses, and the public generally,
are much more ready to criticise judges whose behaviour departs
from appropriate standards of civility and judicial detachment.
This is a good thing. If judges behave inappropriately, they
should be criticised. Of course, on occasions, some judges are
exposed to wrongheaded, extravagant, or unfair criticism. That
is the price that has to be paid to remind all judges of the
necessity to conduct themselves with dignity and decorum.
There are two practical aspects of this subject which may not
be obvious, and which are worth mentioning on an occasion such
as this.
The first concerns prejudgment. Complaints of apprehended bias
often involve, not a suggestion of personal prejudice, but a
suggestion that the judge has made up his or her mind, and become
committed to a particular outcome, before the parties have had
a full and fair opportunity to present their evidence and their
arguments. This can be a particular problem in an age when there
is a great deal of pressure on judges to deal with matters expeditiously,
to discourage time wasting and delay on the part of litigants
and lawyers, and to dispose of huge caseloads in a managerial
rather than a judicial fashion. Some judges respond to these
pressures over enthusiastically, and in doing so fall into the
trap of giving the appearance of pre judgment. There is a balance
to be held between the needs of efficiency and the imperative
of maintaining both the appearance and the reality an open mind
up until the point of decision making.
The second matter to be mentioned concerns what might generously
be described as judicial humour. Some judges, out of personal
good nature, or out of a desire to break the tension that can
develop in a courtroom, occasionally feel it appropriate to
treat a captive audience to a display of wit. Sometimes this
is appreciated by the audience, but sometimes it is not. When
it is not the consequences can be very unfortunate. Judges and
legal practitioners may underestimate the seriousness which
litigants attach to legal proceedings, and they can become insensitive
to the misunderstandings which might arise if the judge appears
to be taking the occasion lightly or, even worse, if the judge
appears to be making fun of someone involved in the case. Without
wishing to appear to be a killjoy, I would caution against giving
too much scope to your natural humour or high spirits when presiding
in a courtroom. Most litigants and witnesses do not find court
cases at all funny. In almost ten years of dealing with complaints
against judicial officers to the Judicial Commission of New
South Wales I have seen many cases where flippant behaviour
has caused unintended but deep offence.
Fairness
You are all familiar with the essential requirements of fairness
in the conduct of court proceedings. The judge must give both
parties a proper opportunity to put their evidence and their
arguments, the judge must listen to the evidence in the arguments,
and must approach decision making with an open mind.
There are, however, some practical aspects of the requirements
of fairness that it is easy to overlook.
In our adversary system of litigation the parties, through their
legal representatives, decide the issues that will be presented
for judicial determination, and the evidence that will be relied
upon for that purpose. This is not the occasion to go into the
merits of the adversary system as compared other systems. It
is the occasion, however, to emphasise one important aspect
of that system. The judge only addresses such issues as the
parties invite the judge to address, and learns only so much
of the facts of the case as will appear from the evidence that
is tendered in the course of the proceedings. Fairness, to the
parties, and perhaps to third parties, requires that the ultimate
judgment be expressed in the light of an understanding of the
limitations inherent in the process.
Judges in the course of delivering reasons for judgment, sometimes
make findings or comments which reflect a lack of appreciation
of those limitations. There may, for example, be a background
to litigation, of which the judge will get only a partial glimpse.
It may be quite unfair for the judge, in those circumstances,
to express unnecessary value judgments, or opinions, or general
conclusions of fact, without knowing the whole of the background
in question.
Again, evidence may be given which affects some third party
not involved in the litigation but which is not challenged by
the other party to the proceedings. It can cause great unfairness
to third parties if judges make findings of fact or comments
which pay no regard to this matter. As a general rule, it is
inappropriate, and often unfair, for a judge, in reasons for
judgment, to make an unqualified adverse finding concerning
someone who is not a party to litigation and who has had no
opportunity to answer the allegation in question.
Some types of proceeding are, by their nature, particularly
apt to give rise to problems of this kind. The best example
I can bring to mind is sentencing proceedings. Especially in
connection with pleas in mitigation, material is often put before
a sentencing judge which is not in admissible form, which has
never been challenged or properly tested, and which might be
highly prejudicial to people who are not involved in the sentencing
proceedings, including victims of crime. Such people usually
have no opportunity of calling that material into question.
It may be perfectly appropriate for the sentencing judge to
accept and act on the basis of that material for the purpose
of sentencing, but extremely unfortunate consequences can ensue
if the remarks on sentence are expressed in an unqualified fashion
which pays no attention to the circumstance that there might
be someone who would want to have an opportunity to challenge
the material if it were made public. It can be very unjust to
a victim of a crime, for example, to wake up one morning and
read in a newspaper an account of the events of a case which
may have come from the offender, or from a witness relating
at second or third hand what the witness has been told, or from
a police officer, without the victim having had an opportunity
to put his or her version of events. Fairness will often require
that a sentencing judge express remarks on sentence in an appropriately
qualified fashion to take account of this possibility. The absolute
privilege which attaches to fair reports of court proceedings
should lead judges to be conscious of the harm that may be done,
unfairly, to third parties by an incautious manner of expressing
reasons for judgment. It is not only fairness to the parties
that should be operating as part of a judge's concern. Non-parties
can often be seriously damaged by a judge's manner of expressing
reasons for judgment. Sometimes this may be the result of mere
thoughtlessness. A judge should never cause unnecessary hurt.
Competence
We live in an age of accountability. What is required of judges
is changing. That is a good thing, but it does not make life
easier for judges.
A good deal of what will be said to you during this orientation
programme will be directed to various aspects of judicial performance.
The very fact that such a programme is now conducted, annually,
by the Judicial Commission of New South Wales and the Australian
Institute of Judicial Administration, itself speaks volumes
as to the change that has occurred in the expectations of the
profession and the public.
I will refer to a few random aspects of judicial performance
in the hope that this may be of some practical assistance.
You are to receive a paper upon the preparation and delivery
of judgments. Without wishing to cut across anything that will
be said in that paper, it is possible that you will be referred
to an article written some years ago by Sir Frank Kitto, entitled
"Why Write Judgments?" That is a subject which should
regularly be revisited. I would like to place particular emphasis
upon the second word in that question.
There is, I believe, a major difference between the performance
of Australian judges and the performance of English judges in
relation to the manner in which they deliver their judgments.
English judges, including judges of appeal, are encouraged to
deliver ex tempore judgments, and develop considerable facility
in doing so. It is a facility I would like to see developed
by more Australian judges. I acknowledge that it may be that
demands by our appellate courts have to some extent resulted
in an increased emphasis on production of written judgments.
If that is the case, then such demands should not have been
made, and I regret them.
One of the major contributing factors to this over emphasis
on reserving judgments is the modern tendency for more and more
of the material, including argumentative material, to be presented
in writing. The corollary is that, at least in New South Wales,
a judge is expected, at the conclusion of the hearing of a case,
to reserve his or her decision and go on immediately with the
hearing of the next case, on the assumption that in due course,
and when time permits, a reserved judgment will be produced,
largely by reference to written material. This is extremely
burdensome for judges. If cases were conducted and argued upon
the assumption, shared by the lawyers, and by the judge, that
an oral judgment would be delivered either at the conclusion
of argument or within a very short time thereafter, the litigation
itself might, in some respects, proceed more slowly, but the
time of the judge would be used more productively, and the ultimate
result would be reached much more quickly.
Regrettably, perhaps because the judge is often the lowest paid
lawyer in the courtroom, court procedures are sometimes arranged
in a manner which undervalues the time of the judge and is aimed
at saving the time of the lawyers. Judges, I think, should reassert
themselves in this respect.
When it is necessary to reserve a judgment, it is usually both
possible and prudent for the judge, immediately following the
conclusion of the argument, to prepare at least the first part
of a reserved judgment, that is to say, the part which outlines
the facts and formulates the issues that arise for decision.
This makes it much easier to come back to the judgment at some
future time. The difficulty of writing a reserved judgment is
increased enormously if, at the end of the hearing, the judge
simply puts the papers away and goes on with the next case.
When I hear a succession of cases I very quickly forget what
the last case was about. Renewing acquaintance with a transcript
and written submissions involves considerable effort. It is
much easier to come back to a half written judgment than to
a clean slate. If you find it necessary to reserve a judgment,
I would advise you at least to get something down on paper before
you become engrossed in the next case.
It is important that judges should maximise the assistance they
receive from counsel. There are various techniques that experienced
judges adopt in this regard. For example, in cases involving
the assessment of damages, judges, as a matter of routine, should
require the opposing counsel to provide them with detailed submissions
as to the calculations for which they respectively contend.
Similarly, when it comes to formulating the orders in a particular
case, both sides should be required to specify, in detail, what
they seek. Unless it is unavoidable, counsel should not be permitted
to thrust lengthy written submissions before a judge with a
casual observation that the judge can read those submissions
later in chambers and counsel will move on to some other subject.
We are constantly told that counsel are there to assist the
judge. Obtaining maximum benefit from such assistance is part
of the judicial technique. Developing that skill will greatly
improve the quality of your judicial lives.
Reasons for judgments are not legal essays, or articles prepared
for a law journal. The purpose of a judgment is to make a decision
about the issues that have been presented for decision, and
to express the reasons for such decision. Just as a judge who
presides at a murder trial does not undertake to provide the
jury with a dissertation on the law of homicide, but should
confine his or her directions to such principles of law as the
jury must understand in order to decide the particular case,
so the reasons for judgment of a trial judge should address,
and address only, the issues that require determination. The
question: "Why write judgments?" prompts another question:
"Who reads them?" Your style of judgment composition
might be affected if, you ask yourselves who wants to hear or
read what you propose to say, and for what purpose. A succinct
method of expressing judgments will be valued by your audience
just as you, as the audience, value the same quality in an advocate.
These observations are not intended to carry the suggestion
that you suppress your individuality or that you should conform
to some tedious and inflexible routine. On the contrary, the
most important piece of practical advice I can give you is that
you should enjoy being a judge. The work of administering justice
according to law is important and honourable. The task of preparing
reasons for judgment, oral or in writing, is often demanding
but it is also capable of giving intellectual satisfaction.
Responding to the challenge of being a just and efficient judge
is a task worthy of any lawyer's mettle. I wish you success
and happiness in your judicial careers.
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