Despite extravagant assurances from the Victorian Government for the judicial complaints system it produced in 2005, the regrettable truth is that so seriously flawed is the basic design structure, it is completely dysfunctional.
It is commonly thought the appellate system addresses any problems arising from a judge’s performance at trial, but that is not correct. The primary function of appellate courts is to review decisions of lower courts, the focus being on judicial findings, not judicial conduct. Judicial findings are, of course, written up in the form of judgments; High Court judge, Sir Frank Kitto, gives the rationale:
The process of reasoning which has decided the case must be exposed to the light of day, so all concerned may understand what principles and practice of law and logic are guiding the courts. (Why Write Judgments? 66 ALJ)
With a judicial complaints system the focus is exclusively on the manner in which judges conduct themselves. Justice Chernov, of the Victorian Court of Appeal (Who Judges the Judges? 2002), explains the concern here is not with the appellate process, but with determining whether a judge’s behaviour has fallen below acceptable standards.
Professor Sallman’s Report (2003), upon which the current Victorian system is based, acknowledges two categories of complaint - complaints that warrant a judge’s removal, and complaints that don’t. Though we are not told how they are graded, minor complaints, it seems, are dealt with internally - whatever that might entail.
Serious complaints are now subject to an elaborate procedure whereby if the Attorney-General is satisfied that there are reasonable grounds for the carrying out of an investigation he appoints an investigating committee, to report as to whether facts exist that could amount to proved misbehaviour or incapacity such as to warrant removing the judge. Then, if the Attorney-General considers it appropriate, parliament votes on removal.
Whatever it might take to satisfy the Attorney-General there are reasonable grounds to initiate an investigation is anybody’s guess; as is what is meant by proved misbehaviour? However, because serious complaints are going nowhere without the Attorney-General’s imprimatur, the primal unknown is: what process does the Attorney-General have in place to decide whether complaints of serious misconduct warrant investigation?
The systemic lack of transparency is worrisome enough, but the problem cuts deeper.
The writer’s interest in the subject arose from an experience as plaintiff in civil proceedings in the Victorian Supreme Court. Having promised family that trial would be the end of litigation, the writer did not appeal the judge’s findings, but litigation did not end the matter. So disturbed was the writer by this judge’s conduct, he formally complained to the Attorney-General and Chief Justice.
Although the complaint seriously impugned the integrity of this judge, the Attorney-General responded there was no basis for complaint; and the Supreme Court CEO responded that no response was required.
With due respect: what sort of government is unconcerned with the integrity of its highest court? Indeed, what sort of complaints system refuses to investigate complaints? Nor could this be fobbed off as run-of-the-mill grumbling by a disgruntled litigant; the allegations here were scrupulously specific and written by an academic lawyer. Given any half-competent researcher could quickly and easily evaluate the claims, one would have thought some sort of examination was in everybody’s interests. Our Supreme Court is too important to allow allegations of serious impropriety go unanswered?
Some judges see no need for a complaints system, arguing the appellate process is the most effective watchdog.
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