Mack, Kathy --- "Judicial Education in Australia: Planning for the Future" [2000] ALRCRefJl 28; (2000) 77 Australian Law Reform Commission Reform Journal 36

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Reform Issue 77 Spring 2000

This article appeared on pages 36 – 39 & 91 of the original journal.

Judicial education in Australia: planning for the future

By Kathy Mack*

In Australia, judicial officers¹ are appointed by the government from the ranks of the legal profession, almost always barristers with substantial courtroom experience. There is no formal, official statement of merit criteria for judicial appointment, though most jurisdictions specify a minimum number of years in practice, usually five or 10. Any consideration of candidates for judicial office is done in the strictest secrecy. Until recently, it was assumed that basic legal education, combined with whatever was learned during practice, was sufficient preparation for judicial office. There was no perceived need formal education or training for judicial officers and there were no structured professional development programs.² Now, it is recognised that orientation training early in a judicial career and continuing professional development are essential to maintain the highest quality judicial service to the community. The value of such programs is generally accepted by the judiciary and supported by government and professional organisations at all levels.³

Why is judicial education needed?

Several developments during the 1990s challenged the assumption that no formal judicial education was needed:

• Recognition that the skills and qualities of barristers are not necessarily those needed by judicial officers.⁴

• Significant changes in law, legal procedure, the legal profession and the judicial role.⁵

• Concern that judicial selection processes resulted in a lack of diversity in judicial officers.⁶

• Concerns about judicial attitudes towards or understanding of certain social groups.⁷

• Recognition that judicial education, both pre-appointment and continuing, is the norm in other jurisdictions.⁸

A barrister who becomes a judicial officer must change from being an advocate to an adjudicator, requiring neutrality and impartial judgment. Moving from bar to bench also often involves a shift from reliance on long developed specialist knowledge to an obligation to adjudicate in a wide range of areas. Though barristers may have technical competence in areas of legal procedure and substantive law, they may lack skills or understanding of other matters now seen as important for the judiciary, or they may not have developed the personal qualities necessary for the judicial role. This concern is intensified when it is recognised that the role of the judiciary is no longer exclusively to adjudicate matters formally presented in court by trained advocates. Judicial officers now have responsibilities of case management, as a result of longer lists and more complex litigation. They are required to assess disputes to determine if they are suitable for non-judicial resolution. People are increasingly appearing in court without legal representation, which places special obligations on the judiciary to ensure a fair process.

Another consequence of a judiciary drawn exclusively from the ranks of senior barristers is that judicial officers are overwhelmingly middle-aged, middle class white males from private school backgrounds.⁹ While not necessarily a problem in itself, the limited background of judicial officers has sometimes meant limited experience with, and understanding of, the wider range of people who appear in court as litigants, witnesses or persons accused of crime. As Professor Marcia Neave has commented:

‘Judges are required to be neutral, independent and impartial, but their perceptions of what is fair and just are inevitably shaped by their life experiences, gender, race and ... other influences.’¹⁰

David Wood points out that background and experience can lead to:

‘... a natural affinity towards other individuals ... from similar backgrounds and with similar life experiences. Background and life experience influence ... values ... and these values in turn influence decisions...’ ¹¹

Concerns about judicial attitudes towards or understanding of certain social groups, especially women, Aborigines, and people from non-English speaking backgrounds, were intensified by media attention to particularly insensitive remarks made by several judges in sexual assault cases.¹² Response to these concerns included recommendations for judicial education programs from several sources, including the Senate Committee on Legal and Constitutional Affairs, the Royal Commission into Aboriginal Deaths in Custody, the Access to Justice Advisory Committee and the Australian Law Reform Commission in its reports on women’s equality.¹³

As well as improving the awareness of existing judges, another approach has been to widen the backgrounds of the judiciary by making appointments from a more diverse range of legal professionals, including solicitors, legal academics, and government lawyers.¹⁴ However, these appointees may lack skills and knowledge about courtroom practice, which barristers are expected to possess. Appropriate education and training can be an effective approach to fill this gap.¹⁵

Supporting all these developments was an increasing awareness within the Australian judiciary that structured judicial education programs were well regarded by judges in many other similar jurisdictions, including the US, Canada, the United Kingdom and New Zealand. In the US, training is seen as integral to the judicial system, and may even be mandatory for new judges. In some respects, the judiciary is like other professions and judicial officers will benefit from appropriate training at the beginning and throughout their careers.

What is the content of judicial education?

Judicial education in Australia is now available as orientation training for new judicial officers and as continuing education for those with more judicial experience. Though each group has specific needs, the knowledge, skills and values that must be covered are similar.¹⁶

Knowledge includes such areas as substantive law, especially sentencing, which judges deal with frequently; aspects of practice, evidence and procedure; recent developments in other disciplines such as forensic science; and social context or other background information.

Skills training includes such topics as courtroom management, judgment writing, use of information technology, and management skills. Skills may also be understood more broadly, including such concepts such as the exercise of discretions or decision making.

Values may be addressed by considering concepts of judicial professionalism and ethics; assisting judicial officers to understand their own values and attitudes, as well as those of other members of the community; and encouraging cross-cultural and gender awareness, especially understanding the different experiences disadvantaged groups have with courts and law.

The development of judicial education programs, especially those directed at values, has generated some controversy within the judiciary.¹⁷ Some fear education programs may be a threat to judicial independence, as they may be perceived as an attempt to improperly direct the outcomes of judicial decisions. There is also little support in Australia for mandatory judicial education, except perhaps orientation training.

It is accepted that judicial education needs to be consistent with principles of judicial independence and adult learning. These principles have been incorporated into the structure and method of judicial education.¹⁸ Programs are best when designed and led by other judicial officers, with the involvement of academics and other professional educators. Teaching methods should emphasise self-directed learning and collegial interaction, with judges learning from each other. The content must be designed to meet practical needs. Although concerns about education as a threat to judicial independence are not widely shared, it is generally accepted that programs should be voluntary, to avoid controversy.

Other concerns about judicial education are judicial time, cost and funding.¹⁹ If programs are prepared and presented by judicial officers, that is time away from core judicial duties, as is the time spent by judicial officers attending the program. Judicial education programs also require additional financial support for the services of education professionals in preparing and presenting the program, preparation of materials, use of facilities and travel and accommodation for judges to attend regional or national programs. At the same time, it is important to realise that the value of judicial education can show up in tangible outcomes, such as better managed and less costly litigation, as well as intangible results such as greater public confidence in the judiciary.

Who provides judicial education?

There are now several sources of high quality judicial education programs in Australia,²⁰ though there is no single national peak or coordination body.

The Australian Institute for Judicial Administration (AIJA) and the Judicial Commission of New South Wales (JCNSW) jointly provide a five-day program for new judges. This program covers areas such as case, trial and courtroom management, assessing credit of witnesses, sentencing, problems in evidence, judgment writing, culture and gender awareness, and ethics.

The AIJA also organises and coordinates specialist programs on Aboriginal cultural awareness, gender awareness, and equality. It holds an annual conference, which includes judicial officers, tribunal members, court staff, legal practitioners and academics, as well as more specialist programs for court administrators, tribunal members and magistrates. The Judicial Council of Australia also holds an annual conference covering a wide range of issues. Victoria will soon establish a Judicial Commission for education and training.

The organisation with the greatest range of judicial education programs is the Judicial Commission of NSW. New South Wales has almost 300 judicial officers, a significant part of a total Australian judiciary of over 800. Its programs are aimed primarily at the NSW judiciary, with programs for each of the courts in NSW. There are also general programs in areas such as computer training, conciliation skills, and seminars on specific topics, as well as the orientation program described above, which are of interest to judges from other jurisdictions.

Most courts in Australia also have their own education programs to meet their specific needs. For example, the Family Court of Australia has developed programs in gender awareness, as well as racial and cultural awareness, which are offered to a range of court staff, including judicial officers.²¹ Each Australian magistrates’ court conducts annual conferences and education programs. In South Australia, there is a judicial education committee composed of one member from the Supreme Court, one member from the District Court, one member from the Magistrates’ Court and a representative from each of the two law schools. There is an annual program for all courts together, as well as programs for individual courts. Newly appointed judicial officers have the opportunity to attend the national orientation program.

Who is educated?

Issues often considered with professional training for judicial officers are education and training for court staff such as masters or registrars, the education needs of members of specialist state and federal tribunals, and whether magistrates should have training apart from judges of superior courts.²² On the one hand, it is recognised that there are common core skills among the tribunal members, magistrates and judges of superior courts, and that there is value in sharing experiences. Some programs, such as the AIJA annual conference, include a range of judges, magistrates, tribunal members and court staff. However, tribunal members may have a greater focus on specialist knowledge, rather than legal qualifications, so the general view among judicial officers has been a preference for programs for judicial officers only. Thus, the AIJA provides a specialist course for tribunal members, as does the Administrative Review Council, and both the AIJA and the JCNSW provide specialist programs for magistrates.

Conclusion

It is now well understood that the quality of the judiciary is an essential component in achieving access to justice,²³ and that a key element in maintaining the high quality of the judiciary is judicial education. Judicial education is now accepted as an integral part of the judicial role. This commitment to judicial education has led to proposals for an Australian national judicial education organisation, in line with other nations, such as the United States of America, the United Kingdom, Canada, and New Zealand.²⁴ The idea of a national judicial education organisation has the support of the Council of Chief Justices, and a number of judicial, educational and government organisations are working towards achieving this goal.²⁵

As the Australian court system enters its third century, the continued development of judicial education programs will strengthen the ability of the judiciary to offer access to justice to the diverse Australian community in a rapidly changing world.

* Kathy Mack is Associate Professor of Law at Flinders Law School. She has contributed to judicial education programs in Australian courts, both state and Commonwealth, and in New Zealand and Hong Kong.

Endnotes

1. In this paper, the term judicial, judiciary or judicial officers includes judges and magistrates in Commonwealth and state courts.

2. Attorney-General’s Department Judicial Appointments – Procedure and Criteria AGPS Canberra 1993 (AG’s report) para 1.2, 1.3, 2.2.2; Senate Standing Committee on Legal and Constitutional Affairs Gender Bias and the Judiciary AGPS Canberra 1994 (SSCLCA report) para 5.5-5.22, 5.47-5.52; ALRC Discussion Paper 62 Review of the federal civil justice system ALRC Sydney 1999 (ALRC DP 62) para 3.74 (DP 62).

3. ALRC Managing Justice: A review of the federal civil justice system (ALRC 89) para 2.149; C Roper Proposed Australian Judicial College: Discussion Paper AIJA and Australian Judicial Conference Melbourne 1999 (Roper report), 1-2.

4. Access to Justice Advisory Committee, Access to Justice - An Action Plan AGPS Canberra 1994 (AJAC report) para 15.81; D Wood, ‘Judicial Fairness and Systemic Bias’ in S Parker and C Sampford (eds) Legal Ethics and Legal Practice Clarendon 1995, 207-208; ALRC DP 62 para 3.76.

5. ALRC 89 para 1.153.

6. AG’s report para 1.3-1.4; SSCLCA report para 5.70-5.84.

7. K Mack ‘Gender Awareness in Australian Courts: Violence Against Women’ (1994) 5 Criminal Law Forum 788; D Wood ‘Judicial Fairness and Systemic Bias’ in S Parker and C Sampford (eds) Legal Ethics and Legal Practice Clarendon 1995, 199.

8. ALRC 89 para 2.153-2.154; ALRC DP 62 para 3.78-3.83; AJAC report 15.89-15.92; Roper report, 28-34.

9. AG’s report, 1.3-1.4.

10. M Neave ‘The Gender of Judging’ (1995) 2 Psychiatry, Psychology and the Law 3, quoted in K Laster Law as Culture Federation Press 1997, 116.

11. D Wood ‘Judicial Fairness and Systemic Bias’ in S Parker and C Sampford (eds) Legal Ethics and Legal Practice Clarendon 1995, 199.

12. K Mack ‘Gender Awareness in Australian Courts: Violence Against Women’ (1994) 5 Criminal Law Forum, 788-9.

13. SSCLCA report, para 36-41, 5.85-5.94; Royal Commission into Aboriginal Deaths in Custody National Report: Overview and Recommendations Recommendation 96, cited in AJAC report para 15.84; AJAC report para 2.92-2.97; ALRC Equality Before the Law: Women’s Equality ALRC Sydney 1994 (ALRC 69) para 8.57-8.68.

14. AG’s report, 1.51-1.52; ALRC 69 para 9.39-9.43; SSCLCA report para 20-35, 5.46-5.84.

15. D Wood ‘Judicial Fairness and Systemic Bias’ in S Parker and C Sampford (eds) Legal Ethics and Legal Practice Clarendon 1995, 207.

16. ALRC 89 para 2.187-2.192; ALRC DP 62 para 3.87, 2.95; Roper report, 21-23; D Wood ‘Judicial Fairness and Systemic Bias’ in S Parker and C Sampford (eds) Legal Ethics and Legal Practice Clarendon 1995, 210; AJAC report para 2.92-2.97,15.94.

17. ALRC 89 para 2.161-2.171; ALRC DP 62, para 3.89-3.90; Roper report, 9; Dowsett, ‘Judicial Education’ Judicial Council of Australia Colloquium, 6-8 November 1998, <www.law.monash.edu.au/JCA>; SSCLCA report para 5.95-5.109.

18. ALRC 89 para 2.187-2.192; ALRC DP 62 para 3.87-3.100; Roper report 11-14.

19. ALRC 89 para 2.198-2.204; ALRC DP 62 para 3.85; Roper report 57-60.

20. ALRC 89 para 2.155-2.156, 2.172; ALRC DP 62 para 3.101-3.102; Roper report 32-3, 51-2.

021. ALRC 89 para 2.172.

22. ALRC 89 para 2.178-2.186, 2.205-2.214; ALRC DP 62 para 3.93, 3.96-3.99; Roper report 33-35.

23. AJAC report 3.73.

24. ALRC 89 2.147-2.158, Roper report.

25. ALRC 89 para 2.174.