Chapter Thirteen: Accountability in the Courts

Question 1

Doctrine of Precedent

Answer 1

A system in which when a judge from a higher court makes a decision in a particular case it creates precedence for that type of case. When a judge from a lower court is confronted by a case in which the facts are similar, the precedence from that higher court is binding and must be followed.

Question 2

Public Confidence

Answer 2

Referring to the confidence that the public has in the judiciary system.

Question 3

Stare Decisis

Answer 3

The notion of precedence and how it applies to cases with similar facts.

Question 4

Court Hierarchy

Answer 4

A system in which courts are ranked as higher or lower depending on the importance and severity of cases. Appeals flow from the lower courts to the higher courts and precedence flows from the higher courts to the lower courts.

Question 5

Procedural Fairness

Answer 5

Procedural fairness refers to the idea that judges must ensure that the procedure of the trial and pre-trial in both civil and criminal cases gives both sides fair and equal opportunity to make their case. This ensures accountability since, if one side perceives that the judge has failed in this task, they have the right to appeal.

Question 6

Charge the Jury

Answer 6

The requirement for a judge in criminal cases and civil cases with a jury to instruct the jury on what pieces of evidence they are allowed to make decisions on. If any evidence has not cleared the rules of evidence, then it is inadmissible in court and thus the jury must not consider it in the decision they are making. If one side believes that the judge has failed in this duty, then there exist grounds for appeal.

Question 7

Abrogation

Answer 7

Abrogation is the action of a Parliament to repeal and change a certain common law principle within a court. For example, the 2002 Ipp report revealed that it was too easy for plaintiffs to gain unreasonable damages from the defendant in civil cases, thus the WA State Parliament passed the WA Civil Liability act to prevent this.

Question 8

WA Civil Liability Act

Answer 8

An act passed in 2002 within the WA state Parliament which abrogated common law relating to the amount of damages that a plaintiff could receive from the defendant in a civil case, responding to the Ipp report in 2002.

Question 9

Clarification

Answer 9

The process of Parliament passing a law which seeks to clarify and improve upon common law, an example being the 1993 Native Title act passed by the Keating Government, which clarified the issue of native title as established in the 1992 Mabo Case.

Question 10

Judicial Discretion

Answer 10

Judicial discretion is the idea that judges should have a certain amount of discretion when making decisions and in particular decisions relating to sanctions in criminal trials. A judge will seek to balance rehabilitation, deterrence, punishment and community protection when making decisions on sanctions for criminals.

Question 11

Judicial Misbehaviours and Incapacity (Parliamentary Commissions) Act

Answer 11

An Act passed in 2012 which enables the Parliament to establish formal Parliamentary commissions into the alleged wrongdoing of federal judges.

Question 12

Codes of Conduct

Answer 12

Codes of conduct are forms of voluntary self-accountability which are applied and exist all across government. In the case of judges, there has been significant interest and proposals into the adoption of a code of conduct for judges, although no formal changes have been made yet.

Question 13

NSW Judiciary Commission

Answer 13

A New South Wales commission established by the 1994 Judicial Commissions act, which is a permanent institution that hears complaints to judges, investigates them and then recommends action to the parliament.

Question 14

What is the ‘paradox’ of the Judiciary as an accountability mechanism?

Answer 14

The Judiciary has the role of holding the Parliament and the executive to account, and in order to perform this role the judiciary must be independent from the other two arms of government. The Parliament and the executive can in no way intervene with any judgements made by the courts, but this leaves the question, how are the courts meant to be held to account if they are truly independent? The answer is that external sources cannot hold the judiciary to account, therefore all of the accountability mechanisms must operate within the courts, such as the process of appeals. The only exception is the fact that the Commonwealth may remove a federal judge for ‘proven misconduct or incapacity’, although this has only ever occurred once in Australian history.

Question 15

If elections grant accountability, why are judges not elected?

Answer 15

Judges are not elected because the selection of judges would then become ‘political’ and reduce the impartiality of the judicial system. This would also undermine the public confidence of the judiciary, which is extremely important to maintain. Additionally, electing judges leaves the system open to manipulation by parties which elect a judge in order to have a more favourable hearing from them.

Question 16

How does the doctrine of precedence ensure accountability in the judicial system?

Answer 16

Judges from a higher court are more experiences and have been promoted to their position for skill and public confidence. Judges in higher courts who create precedence are therefore ensuring accountability on lower courts where this precedence is binding as per the principle of stare decisis, because those lower courts are being forced to conform to the judgements made by higher courts in which the judges are more experienced and trusted. If a lower court judge seeks to avoid precedence, they have to establish a strong ratio decidendi for doing so and if that case is appealed the higher court can override their decision and use different precedence or establish new precedence.

Question 17

How does the appeals process ensure accountability in the judiciary?

Answer 17

Superior courts in the court hierarchy have appellate jurisdiction, the power to hear appeals from lower courts, with the High Court being the final court of appeal. The appeals process imposes scrutiny and accountability on lower courts judges by higher court judges who are more experienced and trusted. Whenever a judge makes a ruling, they have to establish the reasons why they made that ruling their ratio decidendi, and this statement is open to the public. Higher courts judges when considering requests for appeals will review these statements, and if they believe they are not good enough an appeal may be granted. This ensures that lower court judges maintain good standards and that they are incentivised to make the best decision possible, because a judge whose cases are continually appealed draws negative attention to themselves and forfeits possible chance of promotion. The High Court acts as the ultimate accountability mechanism for all the courts, since it is the final court of appeal. For example, in the Cesan and Rivadavia case in 2004, the judge had a medical condition which caused him to remain asleep for large parts of the trial, and the defence submitted an appeal on the basis that the jury was distracted and the judges snoring interfered with cross examination. The High Court accepted the appeal, stating that because the judge was inattentive for a prolonged period of the trial a miscarriage of justice had occurred and a re-trial was needed.

Question 18

What is the role of the Attorney General in the court system?

Answer 18

The Attorney General is responsible for reviewing the judicial system in their respective jurisdiction by allocating resources to certain parts of the system to alleviate certain problems. Judges whose decisions are continually appealed may grab the attention of the office of the Attorney General, since they have a role in giving certain promotions and can seek further action within the higher officers in the judiciary.

Question 19

Explain how the Principles of Natural Justice Ensure Accountability

Answer 19

The principles of natural justice can be broken into four categories: Impartial adjudicators: Judges are required to be completely impartial in any specific case. They are also required to remove themselves from the trial is there is a perceived conflict of interest, for example, if they know the defendant. This ideal ensures accountability since, if there are grounds for a biased hearing, a party can apply for and will most likely receive an appeal. Hear both sides: In both civil and criminal pre-trial, both sides are required to share pieces of evidence and certain documents, and the accused has the right to know what they are being accused of. During the trial, both sides are allotted equal opportunity to make their case, and both are allowed to call their own witnesses and cross reference the other sides witnesses. It is the requirement for the judge to ensure that there is equal hearing from both sides, and if the judge has failed to do this then there exists grounds for appeal. Evidence based decisions: All evidence in both civil and criminal cases must abide by the strict rules of evidence which exist for the adversarial trial process. Opinion, hearsay, irrelevant and circumstantial evidence is not to be admitted in court, and in cases with a jury it is the judges responsibility to charge the jury to ensure that inadmissible evidence does not influence their decision making. If it is perceived that the judge has failed in this task, then there exists definite grounds for appeal. Public hearings: Almost all trials are open to the public and the media, excluding trials that might want to protect vulnerable witnesses or avoid disclosing information relating to national security. The fact that most trials are public ensures that everyone can see the administration of the court in process and reflect and discuss it freely, and judges are more held to account if their work is constantly being monitored.

Question 20

How does public confidence in the courts underpin the idea of accountability in the court system?

Answer 20

While the adversarial trial process does have its criticisms, the judiciary does not share the quality of politicians in being the most disliked public figures in the country. Opinion polls show that the courts are the most well liked part of government and the public service, and this is likely due to a number of reasons: • The courts are considered non-partisan, judges don’t show support for a political party or principles, rather they follow long held and developed legal maxims that the judiciary has relied upon for hundreds of years • Judges do not have to appeal to populism to retain their jobs like politicians do, they have security of tenure under section 72 of the constitution and other legislation • Court systems and traditions are hundreds of years old, and have a history of developing rights and protecting citizens from the government rather than advancing the government’s agenda Public confidence in the judiciary provides accountability because in a sense it removes some of the accountability that is needed to the judiciary to function, because people are already confident in the idea that the judiciary is protecting their interests.

Question 21

How can external accountability mechanisms for the judiciary be divided?

Answer 21

• Traditional accountability mechanisms including the separation of powers and the rule of law • Constitutional accountability in the form of due process for the removal of a judge contained within section 72 • Modern accountability institutions such as the Judicial Misbehaviours and Incapacity (Parliamentary Commissions) Act 2012

Question 22

Explain how traditional accountability mechanisms contribute to accountability in the judiciary

Answer 22

Traditional accountability mechanisms are based on precedence and parliamentary sovereignty. The Parliament is an elected institution and thus has sovereignty to pass and repeal laws, thus any legislation which is passed by Parliament is superior to common law. Parliament may limit judicial discretion or establish new law relating to decisions that they disagreed with in court. Interactions between common law and statute law are classified into either abrogation of clarification. For instance, in 2002 the Ipp report was released which detailed how easy it was to for plaintiffs to prove damages of negligence and receive exceedingly high monitory payments that were deemed unfair by the report. As a result, most state jurisdictions abrogated previous laws relating to payouts for negligence, such as the WA Civil Liability Act 2002, which put limits on the amount that a defendant could be forced to pay to the plaintiff. Parliamentary sovereignty in this case held the judiciary to account and ensured that common law was matching the values of the general public. In 1992, the landmark Mabo Case was decided in the High Court, which led to the current Keating government of the time clarifying the new common law in the 1993 Native Title Act. The act outlined clearly the requirements for native title, distinguishing any ambiguity that the common law may have created, and also created a separate Native Title Tribunal in order for claims of native title to be dealt with fairly or independently. In both these cases, the rule of law and parliamentary sovereignty ensured accountability within the judiciary.

Question 23

Explain how mandatory sentencing laws act as a form of accountability for the judiciary

Answer 23

Mandatory sentencing laws require the judiciary to impose minimum sentences on convicted criminals for certain offences depending on how many times the offence had been committed by the criminal. Mandatory sentencing restrictions judicial discretion and forces judges to abide by community expectations when sentencing criminals, thus holding judges to account for the will of the Parliament and the community.

Question 24

Explain how constitutional accountability applies to the judiciary

Answer 24

Section 72 of the constitution protects the judiciary in a number of wats, ensuring the protection of Judge’s tenure and the protection of judge’s pay which can only be restricted under the ground of ‘proven misconduct or incapacity’ which are deliberate vague terms which makes it exceedingly difficult for a judge to be sacked. The High Court would have to determine what these words mean, and the Parliament would debate and argue over whether the circumstances warrant the use of section 72. While the terms are vague though, section 72 does provide an accountability mechanism in the event that a judge acts with complete disregard to the legal system. The power has never been used at a federal level, but two notable examples exists in the cases of Justice Lionel Murphy and Justice Angelo Vasta. Justice Lionel Murphy was appointed to the High Court under the Whitlam government and was a very controversial figure from the moment he began to operate in the High Court. In 1984 he was accused of perverting the course of justice, and as a result a special Senate select committee was established which eventually led to the recommendation that Justice Murphy be prosecuted. The NSW Supreme Court convicted him for ‘attempting to pervert the course of justice’ but the decision was later appealed by the NSW Court of Appeal. Following this, a special Parliamentary Commission was established to lead a case into Justice Murphy’s wrongdoings, which eventually concluded that 14 matters needed to be followed up on, however at this stage Lionel Murphy was diagnosed with terminal cancer and the complaints against him were thrown out. He died in 1896 after returning to the High Court for one week, but experts say that it is likely the committee would have recommended the use of section 72 had Lionel Murphy not met his untimely end. Justice Angelo Vasta was a justice of the Queensland Supreme Court, and following the Fitzgerald Inquiry, a special Parliamentary Commission was established to investigate the allegations in Justice Vasta which constituted wrongdoing in relation to a family company. These wrongdoings were found to be ‘misconduct’ and in 1989 he became the only ever superior court judge to be removed from office.

Question 25

Explain how modern accountability mechanisms have been developed to ensure accountability within the courts

Answer 25

Modern accountability mechanisms for the judiciary are acts such as the federal Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012, which sets out the framework for the Parliament to establish a special commission into the alleged complaints of misbehaviour and incapacity against judges. The commission acts as an apolitical body, and the Parliament is forced to act upon the committee’s findings, which may trigger a vote on section 72. New South Wales has created a permanent commission into judges with the 1994 Judicial Commission Act, which constantly hears complaints about judges and has resulted in a number of judges retiring due to complaints. Justice Bruce was removed from the Supreme Court after he made apparent his struggles with depression, which was investigated on and reported to the NSW Parliament by the commission. Additionally, in 2016 the NSW Judicial Commission investigated complaints into Judge Jeffreys for his perceived insufficient sanctions given to a convicted paedophile, but the commission expressed that when there exists a legal right of appeal, it can’t punish judges. Because these accountability mechanisms are fairly new, it will remain to be seen how effective they are or if they will be subject to more debate in the future.

Question 26

Examine the role of the chief justice in promoting accountability

Answer 26

The chief justice occupied the highest position of responsibility in the Australian court hierarchy. As such, they are responsible for monitoring the performance of judges in their area of responsibility and may counsel judges that are underperforming.

Question 27

Give an example of a judge being held accountable by codes of conduct

Answer 27

Tim Carmody was Chief Justice of the Queensland Supreme Court from 2013-2016, being appointed to that position by the Queensland attorney general after Justice Carmody openly supported several policies of the Queensland government at the time. For this reason, many viewed Tim Carmody’s promotion with suspect, and he began to undergo intense criticism from his colleagues and the general public after his inexperience and incompetence as a judge became quite apparent. Although he continued to serve as chief justice of the Queensland Supreme Court for three years, in 2016 he resigned from that position under intense pressure from the media and his colleagues. This is thus an example of a judge being held to account by the general public and also the codes of conduct that his colleagues expected of him.