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Where am I now? Lawlink > Supreme Court > Speeches > Opening Of Law Term Dinner, 2007
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Opening Of Law Term Dinner, 2007
OPENING OF LAW TERM DINNER, 2007
ADDRESS BY THE HONOURABLE J J SPIGELMAN AC
CHIEF JUSTICE OF NEW SOUTH WALES
TO THE ANNUAL OPENING OF LAW TERM DINNER
OF THE LAW SOCIETY OF NEW SOUTH WALES
SYDNEY 29 JANUARY 2007
On this occasion last year my address focused primarily on the sesquicentenary of responsible government in this State. I emphasised, as I have on many other occasions, the significance for our society of the longevity of our fundamental institutions of governance, both of parliamentary democracy and the rule of the law. This year I wish to concentrate on the latter and in particular on the institutional arrangements for the independence of the judiciary.
We Australians tend to take many important things for granted. When we flick a switch we expect electricity to be available. When we turn a tap we expect clean water to be available. We rarely give any thought to the complex infrastructure that makes these every day events possible.
The same is true of our mechanisms of governance. We have every right to take these mechanisms for granted, because the institutional infrastructure is effective and robust. Nevertheless, these institutions are capable of being undermined and rendered less effective over time, not only by intentional attack but by inadvertence and indifference.
The significance of the independence of the judiciary is not always fully appreciated, particularly and understandably, by those of whom the judiciary must be independent. Indeed, some sections of our polity, and of our media, appear to resent judicial authority. Some appear to believe that there may be advantage to their own reputation by being seen to be ‘tough on the judges’. This is fraught with danger for our freedoms and social stability.
There is a discernable tendency to treat judges as if they were public servants, subject to bureaucratic criteria of performance. This approach fails to recognise the constitutional role of the judiciary as a distinct arm of government. This is also fraught with danger for our freedoms and social stability.
The white heat of an election campaign is not a propitious time to debate matters of principle. Nevertheless, it is appropriate for me to state the case, at least in outline form, for judicial independence.
Judicial independence is not a privilege of judges which we acquire as a perk of office. Judicial independence is a fundamental right of citizens. It is one of the rights that is enshrined in Australia as a Constitutional principle.
Citizens are entitled to protection from the exercise of the power that others are able to exercise over their lives. Our society cannot be governed by the rule of the law without an institutionalised arrangement for the independence of the judiciary. Furthermore, democracy depends on the courts enforcing what the Parliament intended, not what the Executive wants.
We tinker with this institutional arrangement, developed over the centuries, at our peril. Today, this tinkering is often expressed in terms of judges being “out of touch”. However, as Chief Justice Gleeson has observed, the real complaint often is not that judges are “out of touch” but that they are “out of reach.”
I adopt entirely the observations of Chief Justice Gleeson when he said:
“Some claims that judges are out of touch are based on the flimsiest of evidence, and some are based on no evidence at all. Sometimes the real grievance being expressed is not that judges are out of touch, but that they are out of reach. Those who, in different ways, and in different circumstances, seek to influence opinions, and decision-making, often find the judiciary frustratingly unresponsive. That frustration reveals itself in a search for ways to make judges more accountable. Judges regard judicial independence, not as a personal benefit, but as a constitutional principle that exists for the good of the community. It would be naive to think that everybody sees it in that light. Those who want to influence judicial decision-making, and regret their lack of capacity to do so, may regard the independence of judges as evidence of inappropriate isolation from the rest of the community. But judges are meant to be hard to get at. The reason for that should be obvious. If the idea that judges are easy to influence were to gain currency, there would be plenty of people exerting influence.”
I repeat: judges are meant to be hard to get at.
It is essential to understand that the most frequent litigant in the courts of this State is the Executive branch of government. Citizens confront the Executive branch in all its various capacities in the course of litigation.
- As taxpayers, citizens are engaged in disputes with revenue authorities.
- As property owners, citizens are engaged in disputes with the wide range of regulatory authorities that determine what they can do with their property, indeed whether it can be compulsorily acquired, and if so, at what price.
- As employees, citizens confront the largest single employer in the State.
- As persons entitled to legislative benefits, citizens are confronted with the full range of bureaucratic decision-making processes.
- A significant proportion of injured persons seek compensation from government agencies such as hospitals, railways, road authorities and police.
- Any citizen can be subject to investigation or prosecution by the various authorities that exercise the police power of the state, not only with respect to matters that involve allegations of criminal conduct, but also with respect to the full range of regulations that seek to confine or direct the personal behaviour of citizens and corporations.
- Courts are frequently called upon to determine the validity of executive action and the constitutional validity of legislation promoted by the Executive.
People who are used to getting their way do not usually take kindly to their wishes being frustrated. In the past that has included the aristocracy, when it was the centre of social and economic power. These days such centres of power include major corporations and the mass media. Throughout history the executive branch of government has been such a centre of power.
Since the development of representative and responsible government, the 150th Anniversary of which we commemorated last year, itself building on an inherited tradition at least another 150 years before that, this nation and this State has entrenched a system in which governmental power is divided. This division was, and remains, essential to the maintenance of a society which maximises personal freedom in a stable and ordered society.
It is vital that the independence of the judiciary does not depend solely on the personal integrity and resilience of individual judges. Independence has been institutionalised.
It is more than 300 years since the English system for the administration of justice which we have inherited implemented permanent institutional arrangements for the protection of judicial independence and judicial impartiality. These arrangements are Constitutional in their character, whether contained in a written Constitution, in legislation or in unwritten practices.
Perhaps the most significant aspect of these institutional arrangements, confirmed over more than three centuries of history, is that the exercise of judicial power must be insulated, indeed isolated, from pressure or interference by the Executive branch of government.
There is no single model for achieving this objective. Nevertheless there is a clear set of essential requirements to ensure the institutional independence of courts and the institutional impartiality of judges. Such independence and impartiality must not only exist. It must also appear to exist – reflected in the aphorism that justice must not only be done but must manifestly be seen to be done. The significance of appearances creates additional institutional restraints and requirements.
As is the case with many desirable attributes of a well functioning polity and society, the attainment of judicial independence and impartiality may, on occasions, conflict with the attainment of other desirable objectives. In contemporary discourse there is a need to strike a balance between the requirements of independence on the one hand and an appropriate measure of judicial accountability on the other. In this respect also there is no single model applicable to all nations or to all times. There is a range of legitimate choice, but there are also constraints on the scope of that range.
Our long tradition of institutional independence has been reaffirmed by the people of this State quite recently. In the early to mid 1990’s, unusually, this State had minority governments of both political persuasions when independent members of Parliament held the balance of power. In 1992, on the initiative of the independents, Pt 9 was added to the New South Wales Constitution for the express purpose of guaranteeing the independence of the Judiciary. Subsequently the people of the State voted to entrench this provision so that it can only be altered by a referendum. The question asked of the voters at the time that the people approved the entrenchment of Pt 9 of the Constitution was whether they approved of an act “to prevent Parliament from changing laws about the independence of judges and magistrates without a referendum”. The people of this State resoundingly adopted such a restriction.
The fact of entrenchment by referendum manifests the significance quite recently attributed to the fundamental principle of judicial independence both by the Parliament of this State and by the people of this State.
At the very heart of the institutional arrangements for judicial independence is the process for dealing with a complaint which could lead to the Parliament considering whether a judge should be removed from office. It has always been accepted that the Executive branch of government cannot have significant influence on this process. The judiciary is accountable directly to Parliament not, either directly or indirectly, to the Executive.
A few months ago the Government of New South Wales introduced amendments to the Judicial Officer’s Act 1986, the Act which creates and regulates the Judicial Commission. These amendments followed a review conducted after public enquiry and detailed consultation with all affected parties.
- On 5 April 2005, the Government announced a comprehensive review of the provisions of the Act constituting the Judicial Commission. The Act had been in existence for about 20 years and it was appropriate that a review occur.
- The Judicial Commission and the individual Heads of Jurisdiction, including myself, accepted and agreed to cooperate with this process, about which we had been consulted in advance.
- The Government consulted the Heads of Jurisdiction about the appropriate terms of reference of the inquiry.
- The Government published a notice announcing the review and calling for public submissions. The Review encompassed the entire range of the Judicial Commission’s activities, including the complaints function.
- The submissions from the public, together with detailed submissions made by the Judicial Commission itself, were consolidated and made available to the Heads of Jurisdiction as part of a comprehensive consultative process.
Not all of the recommendations of the Judicial Commission, or of the judges, were accepted by the Government. Nevertheless, between the announcement by the Attorney General of the review on 5 April 2005 and the introduction of the Amendment Bill on 2 May 2006 the process of public and institutional consultation was exemplary. The independence of the judiciary was fully respected in the process and in the result.
Sunday week ago, on 21 January 2007, a News Release was issued in the name of the Premier of New South Wales announcing that the Government intended to introduce legislation for the appointment of two persons, called “community representatives”, to what was described as “the Conduct Division of the New South Wales Judicial Commission”.
A Conduct Division under the existing, recently reaffirmed, legislation is constituted by three judicial officers, one of whom may be retired. There are no standing members of a Division. The members are appointed for each reference.
No reason was given as to why, so soon after a detailed and comprehensive review of these matters, it was nevertheless necessary to make further changes.
The membership of a Conduct Division of the Judicial Commission is a critical, indeed an essential, feature of the Constitutional arrangements for judicial independence in this State. On Monday of last week I wrote to the Premier expressing my disappointment that a matter of such significance to the relationship between the Executive and the Judicial branches of Government should be announced in this manner and without any consultation with the judiciary.
The proposal contained in the News Release is that “a community representative” will become a member of any such Division. I wish to make it clear that I do not regard this aspect of the proposal to be necessarily inconsistent with the principle of independence of the judiciary. Nevertheless, if I had been consulted I would have said that in my opinion this is not a desirable development and I have not yet seen any argument advanced as to why it is so regarded.
In my opinion, the proposed Conduct Division system would not work as effectively as it has in the past. The work of such Divisions involve detailed investigation of facts, a task in which judges have special skills. Once the facts are known the result is usually quite clear. There is little room for applying values let alone “community values”, however they are to be ascertained. The principal task of a Conduct Division is to present the facts, where necessary, to the Parliament. It is in the Parliament that the full range of “community values”, not just the “values” of a single individual however “representative”, are applied.
All of these matters could have been canvassed with the proponents of this proposal if any kind of consultation had occurred prior to its announcement.
It is important to maintain a sense of perspective about this matter. In the 20 years of the Commission’s existence, it has only ever appointed Conduct Divisions on 14 occasions. On six of those occasions no report was finalised, because the judicial officer resigned or retired. On four occasions the Conduct Division dismissed the complaint and on four occasions the complaint was upheld. Three reached the stage of a report to Parliament.
When the Judicial Commission, including the provision for Conduct Divisions, was established about 20 years ago it was a highly controversial proposal amongst judges. It remains so in other States and at the Commonwealth level, which have rejected, often after detailed inquiry, adopting any such system because of the potential for an adverse effect on judicial independence and judicial impartiality.
It will be interesting to see whether this idea that a “community representative” should hear and determine serious complaints is to be applied to other bodies which deal with public complaints, e.g. in the police force.
The News Release of 21 January announced that “community representation works well in the United Kingdom”. This is a surprising observation. Provision for non-judicial participation at one late stage of the process of investigating allegations of judicial misconduct was only introduced in England and Wales in April of last year. So far as I am aware, that provision has never been invoked.
The new English structure contains many closely related protections for the independence of the judiciary, including express declarations of judicial independence and the transfer of many of the functions performed in this State by the Attorney General, from the Lord Chancellor to the Lord Chief Justice of England and Wales either in whole or by conferring a power of veto on the Chief Justice. The complaints process is jointly accountable to both the Lord Chancellor and the Lord Chief Justice. All relevant appointments are made by the Lord Chancellor with the agreement of the Lord Chief Justice.
Under the new English system the functions of a Conduct Division in this State are performed by an individual judge nominated by the Lord Chief Justice with the agreement of the Lord Chancellor. The scope for public participation is a very limited one. It exists only at the level of what is called the Review Body, which will consist of two judicial officers and two lay persons. However a Review only occurs when the Lord Chancellor and the Lord Chief Justice jointly agree that such a review is appropriate or, in limited circumstances, the Ombudsman refers a matter or when an affected judge appeals. Most significantly, lay members cannot be appointed by the Lord Chancellor other than with the agreement with the Lord Chief Justice. In short, the judiciary has the power of veto over any such appointment.
The English provision appears to be distinctively different from the proposal in the Premier’s News Release.
The issue that has given me the greatest concern is the appointment process of the so called “community representatives”. In the News Release the Premier announced that two community representatives would be appointed, but only one would sit on any particular Conduct Division inquiry. The News Release contained few details on this matter.
Some of the media reports suggested that one of the “community representatives” could be from a victims of crime group. This suggestion did not appear in the Premier’s News Release. This idea should be rejected.
First, although the Judicial Commission has a role with respect to sentencing, a Conduct Division has nothing to do with sentencing and I cannot envisage a situation in which it would.
Secondly, every Conduct Division must be impartial and seen to be so. No person with any kind of agenda should be appointed to a Conduct Division.
I reiterate that, notwithstanding my opinion that no case has been made for this change, the concept of a non-lawyer participating in the decision making process of a Conduct Division, is not in itself necessarily offensive to the principle of judicial independence. Indeed such participation occurs now in the deliberations of the Judicial Commission itself with the four non-judicial representatives of the Commission.
However, in my opinion, it would be wrong and contrary to constitutional principle if an appointment to a Conduct Division were to be made by the Executive branch of government. It is important to emphasise that membership of a Conduct Division is quite different from membership of the Judicial Commission.
A Conduct Division has a distinct Constitutional role of a fundamental character for the separation of powers in this State. By s53(3) of the New South Wales Constitution, express provision is made that the holder of judicial office can be removed only in accordance with that section and any additional procedures and requirements contained in other legislation. Section 41 of the Judicial Officer’s Act 1986 makes a report of a Conduct Division an essential requirement for the removal of a judge. In my letter to the Premier last Monday, I indicated my opinion that it was contrary to principle that the Executive determine the membership of such a body.
For over 300 years, the principle underpinning judicial independence has been that it is to the Parliament, and to the Parliament alone, that the Judiciary is accountable. Judges can only be removed by Parliament. Under our constitutional arrangements a Conduct Division report is an essential aspect of the Parliamentary process of removal. No nominee of the Executive branch of government, even if called a “community representative”, should be involved in this fundamental aspect of our institutional arrangements.
I am pleased to inform you that, in response to my letter to the Premier, the Attorney General has informed me that, if re-elected, the Government will undertake consultations about the details of the proposal. The Attorney expressed his opinion that the Judicial Commission should be involved in the selection of the two “community representatives” and in determining which should sit on a particular matter.
I trust that in the course of such consultations the judiciary of this State can rely, as we have in the past, on the support of the legal profession to maintain the principle of judicial independence.
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