If you are facing a trial in court, it is natural to be anxious. However, strong you think your case or defence is, perhaps something has been missed. As we say in a separate article on the adversarial system, court cases in our tradition include tactics and attempts by one side to outwit or outflank the other. No one can be entirely confident they will win under those conditions.
However, a central plank of our system, designed to give confidence and reduce anxiety about arbitrary outcomes, is that the judge is independent of powerful interests and is impartial between you and the other side.
Since the earliest societies, “the logic of the triad” has been a feature of dispute resolution. If there are two opposing sides, there must be a decision-maker that is not on one side or the other. So widespread is this idea that judicial independence is protected (in theory) by the Universal Declaration of Human Rights and other international treaties that apply to Australia.
In modern, complex societies we have powerful governments. We have police forces and prosecution services which are normally better resourced than the people they accuse of offences. In civil cases, we often see individuals facing up to large organisations which have legal teams that repeatedly handle those kinds of disputes.
If we did not have confidence that the person making the final decision is neutral, more people would take matters into their own hands.
Courts, it has been said, are a civilised society’s substitute for vengeance.
Judicial independence is a vital feature of the rule of law. Because governments themselves must rule under law, the judges must be separate from government and be ready to find against them if that is what the law requires.
The law applies equally to the governed and the governors. This could mean that a current or former Prime Minister, President or King is found guilty of an offence. And, under what is called Judicial Review, courts may strike down decisions of Ministers as not complying with the law or appropriate processes.
Judicial independence is one of those areas where the fact and the perception of the fact are both important. If a reasonable person could suspect a judge of leaning to one side (“bias”), or of doing the bidding of a powerful third party, it will undermine confidence in the system even if the judge actually is quite neutral. The system therefore needs to manage perceptions as well as reality.
A tricky balancing act is needed here. It is governments who appoint judges and magistrates, even if they use an advisory body or process to help them, and in practical terms it is the politician called the Attorney-General who makes the decision. Few governments are going to give up that power, and it does inject a democratic element into the judicial system.
In Australia, unlike in the USA, no judges are directly chosen by an electorate, so the appointment of judges by elected governments creates a link between democracy and the rule of law. But it is also a problem, because we need to be sure that no deals are done, no favours given in return; no sense that the whole thing is somehow “dodgy”.
How do we try to solve that problem in Australia?
A key protection is in restrictions on removing a judge, so that they are not concerned about losing their job if they make decisions the government doesn’t like. As part of the struggle to create the rule of law in England, judges were given protection against arbitrary removal in 1701. Since then, similar protections were created in former English colonies.
Now, at federal level, the Australian Constitution provides that judges cannot be removed except after a decision of both Houses of Parliament on the ground of proved misbehaviour or incapacity.
In the states and territories there are similar provisions, and also the Chief Justices of all the Supreme Courts have issued a Declaration of Principles on Judicial Independence (1997), setting out their understanding of security of tenure and other aspects of judicial independence.
A similar protection applies to judges’ salaries and retirement pensions. The Australian Constitution, for example, provides that a judge’s remuneration must not be “diminished” during the time they are in office.
Another relevant feature is that normally cases must be heard in open court, allowing the public and the media to scrutinise what goes on. A major reason for requiring this is to ensure that any improper attempt to pressure a judge is picked up, as well as any apparently biased behaviour of a judge.
Similarly, a judge must give sufficient reasons for their decision to allow their thought-process to be understood, and possibly appealed against.
In the past, there was a strong convention that politicians should not criticise judges for their decisions, and should even come to their assistance if they are under fire publicly in the media. This has broken down in recent times, although there are arguments either way on the issue.
Judges and magistrates can become members of a body now called the Australian Judicial Officers’ Association, which was set up in 1993 to monitor and safeguard judicial independence, and on rare occasions to speak out on judges’ behalf.
It isn’t only about protections. There are duties on judges to keep earning the public’s confidence in their independence and neutrality.
On becoming a judge they will swear an oath to do justice to all manner of people according to the law without fear or favour, affection or ill-will.
Normally judges do not speak publicly on anything that is controversial, and they certainly should not discuss the cases they have tried.
Judges must not have a personal interest in the outcome of a case. A potential conflict of interest might arise, for example, if they have a large shareholding in a company that is a party, and the judge should disqualify themselves.
The same goes for business, professional and other commercial relationships which might raise reasonable suspicions their ultimate decision was affected by them. Personal relationships with parties, their legal advisers and witnesses will also often rule out a judge from hearing a case.
More difficult is the situation where the judge is known to have strong personal views, perhaps religious, cultural or political, which might be relevant in a case.
Even more difficult is the (very possible) circumstance where the judge comes from such a different background from a party that the party thinks they could not possibly understand what lies behind the case.
No system is perfect. And although many judges have impeccable records of impartial decisions about situations they could not possibly have experienced themselves, if only people from a certain background are appointed as judges, it is not surprising that suspicions grow of “an old boy’s network” or “them and us”. It is understandable that some people suspect the system is loaded against them in practice.
This has been a major issue regarding violence against women, with accusations that a male-dominated judiciary has failed to take into account the circumstances of victims. It is fair to say that there are numerous fault lines in modern society that are still exposing the relatively narrow social base from which judges are chosen.
– Written by Emeritus Professor Stephen Parker, Galbally Parker
About Stephen Parker
Professor Stephen Parker was the Vice-Chancellor and President of the University of Canberra from 1 March 2007 until 1 July 2016. He was previously the Senior Deputy Vice-Chancellor at Monash University in Melbourne. Stephen has published books, monographs and articles on the court system, legal ethics, family law and children’s rights. He is also the co-author of a textbook called Law in Context, which is designed to introduce law students to the way that other disciplines view law.
He has held various major research grants in relation to projects on lawyers’ tactics, lawyers’ values, discretionary rules, family law, judicial independence and reform of civil procedure. In 2012 he was elected a Fellow of the Australian Academy of Law. Stephen was made an Officer of the Order of Australia (AO) as part of the Australia Day Honours in January 2014 for his distinguished service to tertiary education through administrative, academic and representational roles, and as a leader in the growth and development of the University of Canberra.
Further Reading on Judicial Independence
If you want to read more about judicial independence, here are some places to start:
Australasian Institute of Judicial Administration, A Guide to Judicial Conduct, 3rd edition, 2017: GUIDE TO JUDICIAL CONDUCT (aija.org.au)
Edith Campbell and HP Lee, The Australian Judiciary, 2nd edition, Cambridge University Press, 2012
Mike McConville and Luke Marsh, The Myth of Judicial Independence, Oxford University Press, 2020
Rebecca Ananian-Welsh and Jonathan Crowe (eds), Judicial Independence: Contemporary Challenges, Future Directions, Federation Press, 2016
Tania Sourdin, Judges, Technology and Artificial Intelligence: The Artificial Judge, Edward Elgar Publishing, 2021
