CHAPTER ONE
1 INTRODUCTION
1.1 Purpose of this publication
The purpose of this publication is to give practical guidance to members of the Australian judiciary at all levels. The words “judge” and “judiciary” when used include all judges and magistrates.
Importantly, this publication seeks to be positive and constructive, and to indicate how particular situations might best be handled.
There is a range of reasonably held opinions on some aspects of the restraints that come with the acceptance of judicial office and allowance has been made for that in this guide.
Over the last 20 years or so, the conduct of judges has come increasingly under public scrutiny, with a growing interest in standards of judicial conduct. Sometimes public comment on judicial conduct has been influenced by false notions of judicial accountability which fail to recognise that a judge is primarily accountable to the law, which he or she must administer, in accordance with the terms of the judicial oath, “without fear or favour, affection or ill-will”.
Some judges respond to the pressures of greater public scrutiny by adopting what has been described as a “monastic” lifestyle, believing that the less judges are involved in non-judicial activities, and the more they limit their social contacts, the less likely they are to put at risk public respect for the judiciary. While that view is understandable, it may well create as many problems as it solves, and not only by limiting the attractiveness of judicial office. Judges "increasingly have to deal with broad issues of social values and human rights, and to decide controversial moral issues that legislators cannot resolve" (Wood, Judicial Ethics A Discussion Paper, AIJA (1996) at 1). A public perception of judges as remote from the community they serve has the potential to put at serious risk the public confidence in the judiciary that is a cornerstone of our democratic society.
The preferred position, which is supported by a clear majority of judges who responded to the survey undertaken for the purpose of this publication, is that judges – subject always to the priority to be given to judicial duties and other necessary restraints – should be, and be seen to be, involved in the community in which they live, and should enjoy the fundamental freedoms of other citizens. In the words of an American commentator (McKay “The Judiciary and Non-Judicial Activities” (1970) 35 Contemporary Legal Problems at 9, 12, cited by Wood at 3 - 4) it is appropriate that judicial officers “live, breathe, think and partake of opinions” in the real world and “continue to draw knowledge and to gain insights from extrajudicial activities that would enhance their capacity to perform the judicial function”.
Once again, however, it is important to emphasise that what follows is not intended to be prescriptive, unless it is so stated. This publication recognises that in cases of difficulty or uncertainty, the primary responsibility of deciding whether or not a particular activity or course of conduct is or is not appropriate rests with the individual judge, but it strongly recommends consultation with colleagues in such cases and preferably with the head of the jurisdiction.
1.2 Scope of this publication
This publication does not purport to be a code in any sense of that word, or to lay down rules. It purposely avoids using the expression "judicial ethics" or describing conduct as "unethical". A brief explanation of the reasons is necessary.
There can be little disagreement with the following statement of Thomas (Judicial Ethics in Australia, 2nd ed (1997) at 9):
It is possible to identify principles or standards of conduct appropriate to the judicial office, but their application to particular issues may, sometimes, reasonably give rise to different answers by different judges. The answer may vary according to the jurisdiction of the court or the place in which the court sits. To give to such standards of conduct the status of rules is to invest them with a prescriptive role which may well be inappropriate.
This publication does not refer to relevant academic literature or the voluminous case law, particularly on the topics of bias, actual or apprehended. It is directed to the Australian judiciary who will find in the work of Justice Thomas and Professor Wood a much fuller discussion, with copious references to source material in academic journals and decided cases.
Finally, this publication does not pretend to be exhaustive, but topics it fails to address may well be discussed in the two principal sources already referred to.
CHAPTER TWO
2 GUIDING PRINCIPLES
The principles applicable to judicial conduct have three main objectives:
To uphold public confidence in the administration of justice;
To enhance public respect for the institution of the judiciary; and
To protect the reputation of individual judicial officers and of the judiciary.
Any course of conduct that has the potential to put these objectives at risk must therefore be very carefully considered and, as far as possible, avoided.
There are three basic principles against which appropriate judicial conduct should be tested to ensure compliance with the stated objectives. These are:
Impartiality;
Judicial independence; and
Integrity and personal behaviour.
This chapter will deal briefly with some aspects of each of these principles, to be followed in later chapters by their application to a selected range of topics or situations. It will become apparent that these basic principles are not in watertight compartments, and may often overlap.
2.1 Impartiality
The large volume of case law involving challenges to judicial impartiality testifies to its importance and sensitivity. There is probably no judicial attribute on which the community puts more weight than impartiality. It is the central theme of the judicial oath of office, although the same words of that oath also embrace the concepts of independence and integrity, and indeed, in many cases, those concepts are involved in acting impartially.
The application of the requirement of impartiality is always subject to considerations of necessity. This may mean that in a small court, or in a court that sits in an isolated location, or in a court such as the High Court where members have a constitutional responsibility to sit, the significance of the matters identified later will differ.
It is easy enough to state the broad indicia of impartiality in court – to be fair and even-handed, to be patient and attentive, and to avoid stepping into the arena or appearing to take sides. None of this, however, debars the judge from asking questions of witnesses or counsel which might even appear to be “loaded” in order to gain a better understanding and eventual evaluation of the facts, or submissions on fact or law.
The more difficult and often controversial area concerns the judge’s extra-judicial activities, which may give rise to a challenge to impartiality by reason of apprehended:
Bias;
Conflict of interest; or
Prejudgment of an issue.
These matters are dealt with in Chapter 3.
2.2 Judicial independence
Much has been written about judicial independence both in its institutional and individual aspects. Judicial independence is sometimes mistakenly perceived as a privilege enjoyed by judges, whereas it is in fact a cornerstone of our system of government in a democratic society and a safeguard of the freedom and rights of the citizen under the rule of law. There are two aspects of this concept that are important for present purposes: Constitutional independence and independence in discharge of judicial duties.
2.2.1 Constitutional independence
(a) The principle
The principle of the separation of powers requires that the judiciary, whether viewed as an entity or in its individual membership, must be, and be seen to be, independent of the legislative and executive arms of government.
The relationship between the judicial arm of government and the other arms should be one of mutual respect, each recognising the proper role of the others (see par 5.6).
Communication with the other arms of government on behalf of the judiciary is the responsibility of the head of the jurisdiction or of the Chief Justice. Judges may take advantage of appropriate opportunities to inform the public about the concept of judicial independence and its importance, and to raise issues of legitimate and serious concern. Prior consultation with the head of the jurisdiction is desirable.
It is not uncommon for the executive government, or even Parliament itself, in matters affecting the administration of justice generally, to want to use the expertise of judges other than in the exercise of their judicial duties. The fact that the High Court has recently held the conferral of certain non-judicial functions on judges to be invalid (Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1; Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51) does not necessarily mean that any such request for extra-judicial advice or service must be refused, but acceptance requires very careful consideration and appropriate safeguards (see Chapter 4).
(b) Attacks upon constitutional independence
Two important attributes of constitutional independence, namely security of tenure and financial security, are sometimes misunderstood, criticised, threatened, or even ignored. When these are the subject of debate, any response on behalf of the judiciary should come from the head of the jurisdiction or from the Chief Justice. This does not preclude appropriate intervention by individual judges, but it is preferable that they should consult the head of the jurisdiction.
2.2.2 Independence in discharge of judicial duties
(a) The principle
Judges should always take care that their conduct, official or private, does not undermine their institutional or individual independence, or the public appearance of independence.
The terms of the judicial oath by which all judges should be guided in the discharge of their duties have already been referred to in par 1.1, but judges should at all times be alert to, and wary of, subtle and sometimes not so subtle attempts to influence them or to curry favour.
It is likely that at some time in a judicial career, a case to be decided (or similar cases) will have been the subject of discussions in the media, sometimes calculated to arouse and even to inflame public opinion. It is easy enough to assert that a judge is, and must be, immune to the effects of publicity, whether favourable or unfavourable, and fearless, but it is less easy to deny the insidious pressure of such publicity.
The independence of the judiciary and of the individual judge will best be served by reliance on personal integrity and the dictates of conscience. Indeed, these brief comments show that the concept of judicial independence is another aspect of judicial integrity and judicial impartiality. Attempts to curry judicial favour can more conveniently be considered when dealing with those topics, with some specific situations to be addressed, in later chapters.
(b) Threats to independence in discharge of judicial duties
Occasionally judges receive letters or other communications containing threats to the safety or welfare of themselves or members of their family, in an effort by or on behalf of disgruntled parties, or special interest groups, to influence a judicial decision.
Conduct of this nature will not, of course, have any effect, but this does not mean that it should be ignored. It is prudent to report any such threat to the administrative or judicial head of the jurisdiction and, if appropriate, to a senior police officer.
Judges should also be alert to observe other conduct which may not be a direct attempt to influence the judge, but may nevertheless be aimed at obstructing the course of justice. A typical example is the intimidation of a witness by the presence in court of persons hostile to that witness, particularly in criminal cases. Appropriate steps to protect such a witness are not inconsistent with judicial impartiality.
A judge who becomes aware of unlawful or improper conduct in connection with the discharge of the judge’s judicial duties will have to consider whether that conduct should be reported to the police or to some other appropriate person and whether it should be disclosed publicly by making a statement in open court or in some other way. The timing of any such action by a judge can be particularly delicate. This is a matter on which discussion with the head of the jurisdiction or with an experienced colleague is desirable.
2.3 Integrity and personal behaviour
As a general proposition, judges are entitled to exercise the rights and freedoms available to all citizens, and while appointment to judicial office brings with it limitations on the public and private conduct of a judge, , it is in the public interest that judges participate as fully as their office permits in the life and affairs of the community. These two general considerations have to be borne in mind in considering the duty of judges to uphold the status and reputation of the judiciary, and to avoid any conduct that might diminish public confidence in, and respect for, the judicial office.
In this area, “there can be few absolutes since the effect of conduct on the perception of the community depends on community standards that may vary according to place or time”. (Canadian Judicial Council, Ethical Principles for Judges (1998) at 14). Judges should be experienced in assessing the perception of reasonable fair-minded and informed members of the community in deciding whether conduct is or is not likely to diminish respect in the minds of such persons. Within that framework, however, there are some precepts which, as a guide to judicial behaviour, are not controversial:
Intellectual honesty;
Respect for the law and observance of the law (although a judge like any other citizen, through ignorance or error, may well commit a breach of a statutory regulation which will not necessarily reflect adversely on judicial integrity or competence);
Prudent management of financial affairs;
Diligence and care in the discharge of judicial duties; and
Discretion in personal relationships, social contacts and activities.
It is the last of these precepts that is likely to cause the most difficulty in practice. As a general rule, it permits a judge to discharge family responsibilities, to maintain friendships and to engage in social activities. But it requires a judge to strike a balance between the requirements of judicial office and the legitimate demands of the judge’s personal life, development and family. Judges have to accept that the nature of their office exposes them to considerable scrutiny and to constraints on their behaviour that other people may not experience. Judges should avoid situations that might reasonably lower respect for their judicial office or might cast doubt upon their impartiality as judges. They must also avoid situations that might expose them to charges of hypocrisy by reason of things done in their private life. Behaviour that might be regarded as merely “unfortunate” if engaged in by someone who is not a judge might be seen as unacceptable if engaged in by a person who is a judge and who, by reason of that office, has to pass judgment on the behaviour of others.
Some specific situations are addressed in Chapters 4, 5 and 6.
It is not necessary for present purposes to address the power of parliaments to remove a judge for serious misconduct. It is sufficient to note that there is persuasive authority for the view that it is not necessary to prove an offence in order to invoke the power.
CHAPTER THREE
3 IMPARTIALITY
A judge should try to ensure that his or her conduct, in and out of court, in public and in private, maintains and enhances public confidence in the judge’s impartiality and in that of the judiciary.
This chapter deals with aspects of a judge’s private life that can raise matters that have the capacity to affect adversely the public perception of a judge’s impartiality. Chapter 4, which deals with conduct in court, also raises some matters relevant to impartiality.
For present purposes it is not necessary to do more than identify some broad areas of sensitivity in no particular order of importance. The list is not exhaustive, but may help to keep judges alert to any risk of a challenge to their impartiality. They are in the nature of warning signs, and the direction in which they point in some common factual situations will be examined more closely in Chapter 4.
3.1 Associations and matters requiring consideration
Professional or business associations requiring consideration include those, past and current, involving directly or indirectly:
Litigants;
Legal advisers of litigants; and
Witnesses.
Other matters requiring consideration are:
Close relationship to persons in the previous categories;
Social contact with parties or witnesses; and
Public statements or expressions of opinion on controversial social issues, or matters in issue in litigation made before or after appointment.
3.2 Activities requiring consideration
Current commercial or business activities – likely in any event to be limited in scope;
Personal or family financial activities, including shareholding in public or private companies or other investments; and
Membership of or involvement with educational, charitable or other community organisations if they become parties to litigation.
There are some well-established limitations and principles for a judge to consider in relation to extra-judicial activities:
Although active participation in or membership of a political party before appointment would not of itself justify allegations of judicial bias or an appearance of bias, it is expected that a judge on appointment will sever all ties with political parties. An appearance of continuing ties such as might occur by attendance at political gatherings, political fundraising events or through contribution to a political party, should be avoided.
The judge’s primary task and responsibility is to discharge the duties of office. A judge should avoid extra-judicial activities that are likely to cause a judge to have to refrain from sitting on a case because of an appearance of bias or because of a conflict of interest that would arise from the activity.
Judges should be aware that the majority of complaints to the Judicial Commission of New South Wales involve allegations of bias against a party, or failure to give a fair hearing. For the most part such complaints have not been sustained, but they indicate the need for care to avoid them.
The guiding principles are:
Whether an appearance of bias or a possible conflict of interest is sufficient to disqualify a judge from hearing a case is to be judged by the perception of a reasonable well-informed observer. Disqualification on trivial grounds creates an unnecessary burden on colleagues, parties and their legal advisers;
The parties should always be informed by the judge of facts which might reasonably give rise to a perception of bias or conflict of interest but the judge must himself or herself make the decision whether it is appropriate to sit.
Judges should be careful to avoid giving encouragement to attempts by a party to use procedures for disqualification illegitimately, such as in an attempt to influence the composition of the bench or to cause delay. (The observations of members of the High Court in Ebner, set out at the end of par 3.3.1 are relevant here.)
3.3 Conflict of interest
Some common situations are mentioned in this chapter, but whether or not such situations disclose a relevant conflict of interest is often debatable.
3.3.1 Shareholding in litigant companies, or companies associated with litigants
Relevant questions for the judge to consider are:
(a) Is the shareholding sufficiently large to enable the judicial or related shareholder to influence the decisions of the company?
(b) Is the value of the judicial or related shareholding likely to be affected by the outcome of the litigation?
But the ultimate issue is whether a fair-minded lay-observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the case.
If the answer to either question is in the affirmative, it is clearly a case for self-disqualification, but if the answer to both questions is negative, the basis for disqualification is much less obvious. Nevertheless, it is important to make full disclosure to the parties before making a decision, although a failure to do so in some circumstances may not be critical.
The judge should disclose the fact of the shareholding in open court thereby giving the parties an opportunity to make any submissions with respect to disqualification or otherwise.
It may be wise, but not obligatory, to limit the range of investment in public companies, to minimise the need for frequent disclosure. Shareholding in a public investment company or in managed funds may be a sensible alternative.
For a more comprehensive examination of the relevant principles with respect to judicial shareholding in litigant public companies as a sufficient reason for disqualification see Ebner v Official Trustee in Bankruptcy; Clenae Pty Ltd v ANZ Banking Group [2000] HCA 63; (2000) 75 ALJR 277; 176 ALR 644.
The application of these principles, and the making of a decision whenever issues of possible bias are raised, call for a good deal of care and common sense. It is useful to bear in mind the remarks of Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner at [20]:
This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.
3.3.2 Business, professional and other commercial relationships
Business, professional and other commercial relationships have the capacity to cause a judge to have a potential interest in the outcome of litigation, and so to raise the question of possible disqualification. If such a relationship means that a judge has a “not insubstantial, direct, pecuniary or proprietary interest in the outcome of litigation” (Ebner at [58]), disqualification will ordinarily be necessary.
The circumstances requiring consideration are varied. A judge should consider any current commercial or business activities, although it is likely that they will be limited. A judge should also consider any such activities undertaken by close relatives. Although these are properly to be considered under the heading “Personal relationships” (below), a financial interest of a close relative might be regarded by an observer as equivalent to a financial interest on the part of the judge.
The relationships or associations that require consideration under this head include relationships such as insurer and insured, banker and customer, local government body and ratepayer, school and parent of child attending school. In some circumstances such a relationship could give rise to a disqualifying interest in the outcome of litigation. The judge should consider any such relationship that arises on the facts.
The judge should also consider whether any such relationship might give rise to a conflict of interest because of an appearance of predisposition in favour of or against the other party to the relationship. There is, for example, an obvious difference between the situation of the judge who is negotiating, say, the terms under which a bank will extend a significant overdraft, and that of a judge whose relations with a bank do not involve the bank doing anything more than honouring its obligations as a banker. Similarly, a judge who is a ratepayer and is also an objector to a rate assessment or an objector to a planning application, will be in a different situation to a judge who is merely a ratepayer. A judge whose claim under an insurance policy is questioned by the insurer is in a different situation to a judge who is merely a policy holder or whose claim under the policy is quite uncontentious.
3.3.3 Judicial involvement with litigant community organisations
Questions similar to those posed with respect to judicial shareholdings and commercial relationships may again be relevant, ie is the judge able to influence decisions of the organisation; is the litigation likely to have an effect on the organisation that is involved? But even if a negative answer is given to those questions, disqualification may be the most prudent course to adopt where a relationship exists. There may be no significant conflict of interest, but a real risk of the appearance of bias by reason of the judge’s empathy with the organisation.
3.3.4 Personal relationships
There are many personal relationships to be considered. The most important relationships may be categorised for present purposes as:
First degree – parent, child, sibling, spouse or domestic partner;
Second degree – grandparent, grandchild, “in-laws” of the first degree, aunts, uncles, nephews, nieces;
Third degree – cousins and beyond;
And such relevant relationships may exist with:
(i) Parties;
(ii) Legal advisers or representatives of parties;
(iii) Witnesses.
In addition to such relationships, friendship or past professional or other association with such persons needs to be considered in some situations. There are no hard and fast rules, but the following guidance is offered.
(a) A judge should not sit on a case in which the judge is in a relationship of the first, second or third degree to a party or the spouse or domestic partner of a party.
(b) Where the judge is in a relationship of the first or second degree to counsel or the solicitor having the actual conduct of the case, or the spouse or domestic partner of such counsel or solicitor, most judges would and should disqualify themselves. Ordinarily there is no need to do so if the matter is uncontested or is a relatively minor or procedural matter. Nor is there a need to do so merely because the person in question is a partner in, or employee of, a firm of solicitors or public authority acting for a party. In such cases, it is a matter of considering all the circumstances, including the nature and extent of the involvement in the matter of the person in question. Some judges may be aware of cases involving such a relationship when the judge has sat without objection, but current community expectations make such conduct undesirable.
In most of these situations, Bar Rules in each jurisdiction require a barrister to return a brief to appear in a contested hearing, so the occasion for a judge to disqualify himself or herself should arise infrequently.
There may be a justifiable exception:
By reference to the principle of necessity (see par 2.1);
Where the solicitor-relative is a partner or employee of the solicitor on the record, but has not been involved in the preparation or presentation of the case;
Where, notwithstanding the relationship, the parties to the case consent to the judge sitting but that may depend upon the nature of the relationship, which should be disclosed to the parties before the judge decides whether to sit or not to sit.
(c) Personal friendship with a party is a compelling reason for disqualification, but friendships should be distinguished from acquaintanceship which may or may not be a sufficient reason for self-disqualification, depending upon the nature and extent of such acquaintanceship. The judge should consider whether to inform the parties of an acquaintanceship before the hearing begins.
(d) A current or recent business association with a party will usually mean that a judge should not sit on a case. For this purpose a business association usually does not include associations such as insurer and insured, banker and customer, rate payer and local government body, but might do so, depending on the circumstances.
(e) Past professional association with a party as a client is not of itself a reason for disqualification unless the judge has been involved in the subject matter of the litigation prior to appointment or unless the past association gives rise to some other good reason for disqualification.
If the judge has been involved in the subject matter of litigation, the judge should not sit, but otherwise the decision to sit or not to sit may depend upon the extent of previous representation and when it occurred. It may be desirable to disclose the circumstances of such representation to the parties before deciding what to do. The nature and content of anything learned, or any views formed, bearing upon the credibility of the party may need to be considered.
(f) Friendship or past professional association with counsel or solicitor is not generally to be regarded as a sufficient reason for disqualification.
(g) Where a person who is in a first degree relationship to the judge is known to be a witness, the judge generally should decline to take the case, unless the witness is to give only undisputed narrative testimony. In such a case, and if no objection is taken by the parties, the judge may decide to sit, but may well choose not to do so.
(h) Where the relationship of a witness to the judge is of the second or remoter degree, disqualification by the judge is less compelling, but again the decision to sit or not to sit may depend upon the nature of the testimony and the issue, if any, of credibility.
(i) The mere fact that a witness is personally well known to the judge, may not of itself be a sufficient reason for disqualification of the judge. If however the credibility of the witness, as distinct from opinion, is known or likely to be in dispute, the judge should not sit.
(j) A recent business association between a judge and a witness will not necessarily be a basis for disqualification of the judge, particularly if the association involved only an isolated transaction, but all of the circumstances should be carefully considered.
In the latter two cases, the fact of the relationship or friendship, and ordinarily its nature, should be disclosed to the parties.
3.4 Other grounds for possible disqualification
If a judge is known to hold strong views on topics that are relevant to issues in the case by reason of public statements or other expression of opinion on such topics, possible disqualification of the judge may have to be addressed, whether or not the matter is raised by the parties. In such a case, the judge will have to assess, and respond to, the risk of an appearance of bias. The risk is especially significant where a judge has taken part publicly in a controversial or political discussion. (Discussions of that nature concerning the administration of justice are dealt with as a separate matter in par 5.6.)
What a judge may have said in other cases by way of expression of legal opinion whether as obiter dicta or in dissent can seldom, if ever, be a ground for disqualification.
Where a close member of a judge’s family is politically active, the judge needs to bear in mind the possibility that, in some proceedings, that political activity might raise concerns about the judge’s own impartiality and detachment from the political process.
3.5 Disqualification procedure
(a) If a judge considers that disqualification is required, the judge should so decide. Prior consultation with judicial colleagues is permissible and may be helpful in reaching such a decision. The decision should be made at the earliest opportunity.
(b) In cases of uncertainty where the judge is aware of circumstances that may warrant disqualification, the judge should raise the matter at the earliest opportunity with:
(i) The head of the jurisdiction;
(ii) The person in charge of listing;
(iii) The parties or their legal advisers;
not necessarily personally, but using the court's usual methods of communication.
(c) Disqualification is for the judge to decide in the light of any objection, but trivial objections are to be discouraged.
(d) It will generally be appropriate in cases of uncertainty for the judge to hear submissions on behalf of the parties and that should be done in open court.
(e) The judge should be mindful of circumstances that might not be known to the parties but might require the judge not to sit, and of the possibility of the parties raising relevant matters of which the judge may not be aware. It is not appropriate for a judge to be questioned by parties or their advisers.
(f) If the judge decides to sit, the reasons for that decision should be recorded in open court. So should the disclosure of all relevant circumstances.
(g) Consent of the parties is relevant but not compelling in reaching a decision to sit. The judge should avoid putting the parties in a situation in which it might appear that their consent is sought to cure a ground of disqualification. Even where the parties would consent to the judge sitting, if the judge, on balance, considers that disqualification is the proper course, the judge should so act.
(h) Even if the judge considers no reasonable ground of disqualification exists, it is prudent to disclose any matter that might possibly be the subject of complaint, not to obtain consent to the judge sitting, but to ascertain whether, contrary to the judge’s own view, there is any objection.
(i) The judge has a duty to try cases in the judge's list, and should recognise that disqualification places a burden on the judge's colleagues or may occasion delay to the parties if another judge is not available.
There may be cases in which other judges are also disqualified or are not available, and necessity may tilt the balance in favour of sitting even though there may be arguable grounds in favour of disqualification.
3.6 Summary
If these guidelines do not lead the judge to a conclusion, there is a large volume of case law and academic writing that may assist the judge, but in the end the decision to sit or not to sit must rest comfortably with the judicial conscience.
CHAPTER FOUR
4 CONDUCT IN COURT
4.1 Conduct of hearings
It is important for judges to maintain a standard of behaviour in court that is consistent with the status of judicial office and does not diminish the confidence of litigants in particular, and the public in general, in the ability, the integrity, the impartiality and the independence of the judge. It is therefore desirable to display such personal attributes as punctuality, courtesy, patience, tolerance and good humour. The trial of an action, whether civil or criminal, is a serious matter but that does not mean that occasional humour is out of place in a courtroom, provided that it does not embarrass a party or witness. Indeed it sometimes relieves tension and thereby assists the trial process.
Nevertheless, the entitlement of everyone who comes to court – litigants and witnesses alike – to be treated in a way that respects their dignity should be constantly borne in mind. It is worth remembering that many complaints to the Judicial Commission of New South Wales by litigants and their lawyers have had as their foundation remarks made by judicial officers in the course of proceedings. The absence of any intention to offend a witness or a litigant does not lessen the impact.
A judge must be firm but fair in the maintenance of decorum, and above all even-handed in the conduct of the trial. This involves not only observance of the principles of natural justice, but the need to protect a party or witness from any display of racial, sexual or religious bias or prejudice. Judges should inform themselves on these matters so that they do not inadvertently give offence.
A judge should remember that informal exchanges between the judge and counsel may convey an impression that the judge and counsel are treating the proceedings as if they were an activity of an exclusive group. This is a matter to be borne in mind particularly in a case in which there is an unrepresented litigant, but the caution extends to all cases.
4.2 Participation in the trial
It is common and often necessary for a judge to question a witness or engage in debate with counsel, but the key to the proper level of such intervention is moderation. A judge must be careful not to descend into the arena and thereby appear to be taking sides or to have reached a premature conclusion.
4.3 Private communications
The principle that, save in the most exceptional circumstances, there should be no communication or association between the judge and one of the parties (or the legal advisers or witnesses of a party) otherwise than in the presence of, or with the previous knowledge and consent of, the other party (or parties) once a case is under way is, of course, very well known. The principle is referred to by McInerney J in R v Magistrates’ Court at Lilydale; Ex parte Ciccone [1973] VR 122 (at 127) in a statement approved in Re JRL; Ex parte CJL (1986) 161 CLR 342 by Gibbs CJ (at 346) and Mason J (at 350-351). An approach to a judge in chambers by the lawyers for one party should not be made without the presence, or the knowledge and consent of, the lawyers for the other party. It is important to bear in mind that breaches of the principle can occur through oversight, sometimes when attempts are made to adopt what may seem to be practical, convenient, or time-saving measures. Care should be taken, for example, on country circuits if suggestions are made about shared travel that seem sensible at the time, but may in fact involve a breach of the principle.
4.4 Criminal trials before a jury
It is of particular importance in a jury trial that the nature or extent of judicial intervention in the course of evidence or argument does not convey to the jury a judicial view of guilt or innocence.
4.5 Revision of oral judgments
4.5.1 Oral judgments
A judge may not alter the substance of reasons for decision given orally. That is the basic principle. Subject to that, a judge may revise the oral reasons for judgment where, because of a slip, the reasons as expressed do not reflect what the judge meant to say, or where there is some infelicity of expression. Errors of grammar or syntax may be corrected. References to cases may be added, as may be citations for cases referred to in the transcript.
4.5.2 Summing up to a jury
The transcript of a summing up to a jury is, like the transcript of evidence, intended to be a true record of what was said in court.
Apart from errors of spelling or punctuation which may alter the meaning if uncorrected, there should be no change to the transcript of a summing up unless it does not correctly record what the judge actually said. Where time and opportunity permit, it is desirable for a judge to prepare written notes of the intended charge to the jury, particularly with respect to directions on the law, which may help to validate any proposed change to the transcript of the summing up. If the transcript is corrected, and a fresh transcript of the summing up incorporating the corrections is to be prepared, the original transcript should be retained on the court file.
4.6 Reserved judgment
A judge should aim to prepare and deliver a reserved judgment as soon as possible, but it sometimes happens that circumstances lead to an unacceptable accumulation of reserved judgments. In that event, a judge should speak to the head of the jurisdiction about the situation before the delay has become a problem.
4.7 The judge as a mediator
Many judges consider that the role of a mediator is so different from that of a judge that it is undesirable for a serving judge to act as a mediator. The difference lies in the interaction of a mediator with counsel and parties, often in private – ie in the absence of opposing counsel or parties, which is seen to be incompatible with the way in which judicial duties should be performed, with the risk that public confidence in the judiciary may thereby be impaired. Many judges would see this as a matter of court policy.
In some courts, the Rules of Court with respect to mediation specifically recognise the appointment of a serving judge as a mediator. The success of judicial mediation in those jurisdictions appears to justify the practice. The statutory obligation of confidentiality binding upon a mediator, and the withdrawal of the judge from the trial or an appeal, if the mediation fails, should enable a qualified judge to act as a mediator without detriment to public expectations of the judiciary.
CHAPTER FIVE
5 ACTIVITIES OUTSIDE THE COURT
This chapter deals with specific examples of conduct or activities of a legal nature, but, as indicated in Chapter 1, it does not seek to be prescriptive. Opinions about such activities may vary, but the cardinal test for each judge in considering what to do is to seek to conform with the guiding principles dealt with in Chapter 2.
Principle and protocol require that if the executive government is seeking the services of a judge for a non-judicial appointment, the first approach should be to the head of the jurisdiction, seeking the approval of that person for the appointment of a judge from that jurisdiction, and approval to approach the judge in question. The head of the jurisdiction will consider the propriety of the judge accepting the appointment, with particular reference to the maintenance of the independence of the judiciary and to the needs of the court. The head of the jurisdiction will consult with other members of the jurisdiction as may seem appropriate. If there is no objection in principle, the head of the jurisdiction will consider whether the judge can be made available, and whether the first approach to the judge in question should be from the head of the jurisdiction or from a representative of the executive government.
It is inappropriate, subject to legislative provision, for a serving judge to accept payment other than reimbursement of expenses or an equivalent allowance, in connection with a non-judicial appointment.
5.1 Membership of government advisory body or committee
There is no simple answer to the question whether a judge should serve on a statutory or government body or committee.
It is generally not inappropriate for a judge to be a member of a committee dealing with matters having a direct relationship with judicial office such as court structures, law reform (but as to this, see below) or other legal issues, and there may be other cases in which it would be desirable in the public interest to have the benefit of a judge’s expertise and experience on a government committee or advisory body. Much will depend upon the role and terms of reference of the committee or advisory body. But in weighing the options, a judge should remember that membership of a permanent body might involve advising on controversial issues, which may be inconsistent with the perceived impartiality and political neutrality of a judge.
5.2 Submissions or evidence to Parliamentary inquiries relating to the law or the legal system
It is appropriate for a judge to make a submission or give evidence at such an inquiry if care is taken to avoid confrontation or the discussion of matters of a political rather than a legal nature, but prior consultation with the head of the jurisdiction is desirable. Again, the expertise or experience of a judge can be of great assistance in the examination of issues relating to legal or procedural matters. As long as discretion is exercised, this would not detract from the independence of the judiciary from the legislative and executive arms of government.
5.3 A judge as a law reform commissioner
Judges have been appointed as part-time commissioners at both state and federal level on many occasions, although in some States it is thought that judges should not accept such an appointment. As long as time spent in the work of the commission does not interfere with judicial duties, and if the approval of the head of the jurisdiction has been given, there need not be any conflict between the role of the commissioner and judge.
As in situations dealt with already, the experience of a judge can be valuable in considering the need for reform in a particular area of the law, and in looking at the effect in practice of proposed changes. This need not be in conflict with a judge’s judicial duties or detract from judicial independence.
5.4 Membership of non-judicial tribunals
The head of the jurisdiction should be consulted about the proposed appointment. If the appointment is made by a Minister or a government officer, the protocol outlined at the beginning of this chapter should be observed.
There are a number of tribunals in respect of which there is statutory authority for judicial membership, but in some other cases – particularly if decisions of the tribunal are likely to be controversial as in the case of some sporting disciplinary tribunals – the judge should weigh the risks of involvement and adverse publicity before accepting appointment. In the case of private or sporting tribunals, the judge should consider whether any apparent conferring of judicial authority on the tribunal is appropriate.
5.5 Membership of parole boards
In some States it has been common practice for serving and retired judges to be members of parole boards on which their judicial experience is undoubtedly valuable. If legislative provision is made for judicial membership of a parole board, there is no objection to membership. Absent legislative provision, the risk of conflict with a sentencing judge and a threat to judicial comity, however slight, might be seen by some judges as making membership undesirable.
5.6 Public comment by judges
5.6.1 Participation in public debate
Many aspects of the administration of justice and of the functioning of the judiciary are the subject of public consideration and debate in the media, at public meetings and at meetings of a wide range of interest groups.
Appropriate judicial contribution to this consideration and debate is desirable. It may contribute to the public’s understanding of the administration of justice and to public confidence in the judiciary. At the least, it may help to dispose of misunderstandings, and to correct false impressions.
Considerable care should be exercised to avoid using the authority and status of the judicial office for purposes for which they were not conferred. Points to bear in mind when considering whether it is appropriate to contribute include the following:
A judge must avoid involvement in political controversy, unless the controversy itself directly affects the operation of the courts, the independence of the judiciary or aspects of the administration of justice;
The place at which, or the occasion on which, a judge speaks may cause the public to associate the judge with a particular organisation, group or cause;
There is a risk that the judge may express views, or be led in the course of discussion to express views, that will give rise to issues of bias or prejudgment in cases that later come before the judge;
Other judges may hold conflicting views, and may wish to respond accordingly, possibly giving rise to a public conflict between judges which may bring the judiciary into disrepute or could diminish the authority of a court;
A judge, subject to the restraints that come with judicial office, has the same rights as other citizens to participate in public debate;
A judge who joins in community debate cannot expect the respect that the judge would receive in court, and cannot expect to join and to leave the debate on the judge’s terms.
If the matter is one that calls for a response on behalf of the judiciary of the State, Territory or court collectively, that should come from the relevant Chief Justice or head of the jurisdiction, or with that person’s approval. Subject to that, and bearing in mind the points made above, care is called for before contributing to community debate using the judicial title, or when it will be known that the contribution is from a judge.
5.6.2 Public debate about judicial decisions
It is well established that a judge does not comment publicly once reasons for judgment have been published, even to clarify ambiguity.
On occasions decisions of a court may attract unfair, inaccurate or ill-informed comment. Many judges consider that, according to the circumstances, the court should respond to unjust criticism or inaccurate statements, particularly when they might unfairly reflect upon the competence, integrity or independence of the judiciary. Any such response should be dealt with by the Chief Justice or other head of the jurisdiction.
5.7 Writing for newspapers or periodicals; appearing on television or radio
There is no objection to judges writing for legal publications and identifying themselves by their title. Care must be taken, however, not to express a view about the law where that same question may have to be decided by the judge in court.
There is no objection to articles in newspapers or non-legal periodicals and other contributions intended to inform the public about the law and about the administration of justice generally but before agreeing to write such an article, it is desirable that the judge should consult with the head of the jurisdiction.
Judges are occasionally asked to take part in radio talk-back or television programs on matters of public interest. Such activities, if they are to take place, are best carried out by or after consultation with the head of the jurisdiction, and should usually be restricted to matters affecting the administration of justice. The matters raised in par 5.6.1 will usually require consideration.
There seems to be no objection in principle to a judge writing in a private capacity on a non-legal subject.
5.8 Legal teaching
It is common for judges who lectured at law schools before their appointment to continue to do so after they are appointed. As long as this does not interfere with judicial duties, there is an advantage in having a judge give lectures to students. In aspects of a course where there may be differences of views, discretion will have to be exercised – particularly where the lecturer may later have to decide the question as a judge.
5.9 New books – prefaces and book launches
Legal textbooks frequently have prefaces written by judges and such an activity is unlikely to be open to any reasonable objection. In writing a preface for, or agreeing to launch, a non-legal book, some care and discretion is called for. Both the subject matter of the work, and the relationship of the judge to the author, need to be weighed, in order to avoid any perception that the judge may be promoting a particular cause or taking a political stance, or that the author’s reason for seeking to involve the judge might be more mercenary than personal.
5.10 Payment for writing legal books
Judges also write and contribute to legal textbooks. This is not controversial and it is not wrong for a judge to receive payment for writing of this nature. As a practical matter these payments are unlikely to be large. The writing of a book should not, of course, interfere with the performance of a judge’s judicial duties.
5.11 Taking part in conferences
Judges may, and frequently do, deliver papers at legal conferences. Participation in, or the giving of papers at, non-legal conferences, without a fee, is not objectionable, but it would generally be advisable to avoid speaking or writing on controversial or politically sensitive topics.
CHAPTER SIX
6 NON-JUDICIAL ACTIVITIES AND CONDUCT
This chapter poses, in no particular order of importance, a number of specific questions that a judge may have to answer, always within the framework of the guiding principles discussed in Chapter 2.
6.1 Commercial activities
The permissible scope of involvement in commercial enterprise concurrently with judicial office is limited by a number of factors:
Judicial office is a full-time occupation and the timely discharge of judicial duties must take priority over any non-judicial activity;
The benefits of office, including pensions or superannuation, should give a comfortable level of financial security for life to obviate the need to augment earnings by activities that might generate a conflict of interest or otherwise pose a potential threat to public confidence;
Directorships of public companies should be resigned on appointment and not thereafter accepted while in judicial office.
It is not possible to be definitive about the commercial activities that are appropriate and inappropriate. The judge should consider how the judge’s involvement (whatever it is) might reflect on the judicial office. Any activity that will, or might, involve the judge in unlawful activity, obviously should be avoided. A commercial activity that might give rise to public controversy seems undesirable. The issue is one on which consultation with colleagues may be helpful.
A judge should not engage in any financial or business dealing that might reasonably be perceived to exploit the judge’s judicial position, or that will involve the judge in frequent transactions or business relationships with persons likely to come before the judge in court.
Some small-scale non-judicial activities that might be perceived as commercial are quite common and not objectionable, particularly if they are primarily recreational. Examples (and there are many others) are:
Hobby farms and other agricultural enterprises;
Larger managed enterprises that do not require “hands on” responsibility;
Directorship of small family companies.
6.2 Judges as executors or trustees
The management of deceased estates for close family members, whether as executor or trustee, is unobjectionable, and may be acceptable even for other relatives or friends if the administration is not complex, time consuming or contentious.
The risks associated with the office of trustee, even of a family trust, should not be overlooked. Beneficiaries are not always happy with management or discretionary decisions taken by a trustee, and a judge would be wise to weigh such factors before accepting the office.
6.3 Acceptance of gifts
It is necessary to draw a distinction between accepting gifts in a personal capacity unrelated to judicial office, eg from family or close friends, and gifts which in some way relate, or might appear to relate, to judicial office. It is only in the latter category that acceptance of gifts or other benefits needs careful consideration.
Some such gifts are unobjectionable, for example a small gift such as a bottle of wine or a book by way of thanks for making a speech or otherwise participating in a public or private function.
Some benefits which may well be legitimate marketing or promotional activities may nevertheless cause difficulties. Refusal of such a benefit may seem churlish or even offensive if it imputes or implies improper motives, but the short answer is that there is no good reason why judges should receive free benefits that others have to pay for. On the other side of the same coin, it is axiomatic that judges must not exploit the status and prestige of judicial office to solicit or obtain personal favours or benefits.
Judges should be wary about acceptance of any gift or benefit that might be interpreted by others as an attempt to woo judicial goodwill or favours. Gifts or other benefits from practising members of the legal profession may fall into that category.
6.4 Engagement in community organisations
Prior to their appointment, many judges have been actively engaged in community organisations, particularly but not exclusively educational, charitable and religious organisations. Such engagement as a judge is to be encouraged and carries a broad based public benefit, provided it does not compromise judicial independence or put at risk the status or integrity of judicial office. It is the proviso that helps to define the limits, namely:
Such activities should not be too numerous or time consuming;
The judicial role should not involve active business management;
The extent to which the organisation is subject to government control or intervention must be weighed.
The governing bodies of universities, public or large private hospital boards or other public institutions invite special attention. Although the management and funding structures of such organisations are complex, and are often the subject of public debate and political controversy, many judges, present and past, hold or have held high office in such organisations without embarrassment by regulating the nature or extent of personal involvement in contentious situations.
The role of many such public institutions is, however, changing. They are often encouraged to be more entrepreneurial, and commercial activities as well as industrial issues or disputes are likely to appear on their agendas. The more that the business of their governing bodies comes to resemble that of the board of directors of a public company, the less appropriate judicial participation may be. There is, however, no embargo on such an activity. It is for the individual judge to weigh the “pros and cons” by reference to the suggested guidelines.
Any conflict of interest in a litigious situation must of course be declared.
6.5 Public fund raising
Organisations of the kind referred to in the preceding paragraphs are often engaged in public fund raising.
It is undesirable for the name and title of a judge as a member of the governing body of the organisation to appear on the letterhead or other documents specifically associated with an appeal for funds. A judge should not personally solicit funds from a legal practitioner or any other prospective donor.
Publication of the name of a judge as a subscriber is not itself objectionable, but many judges may prefer anonymity. It is a matter of personal taste.
6.6 Character and other references
The Judicial Commission of New South Wales (the members of which include the heads of the six courts in that State) in 2000 expressed a view that judicial officers should not give character evidence or issue written testimonials directed to the same issue. This is subject to two exceptions:
Where it would be unjust or unfair to deprive the beneficiary of special knowledge possessed by the judicial officer; and
Where a member of the judicial officer’s staff is given a reference relating to employment.
The second of these exceptions does not deal with character evidence.
In other States a less strict view may be held. There are different opinions, but they appear to justify the following summary:
(a) There is no objection in principle to a judge giving a reference as to character or professional competence of persons who are well known to the judge, and preferably favourably known – a wise person takes care in choosing referees. It is permissible to use a judicial letterhead for a reference as to legal professional competence of a former member of the judge’s staff, but in other cases it is more appropriate to use a private letterhead.
(b) Whether a judge should give character evidence in court or otherwise is a vexed question that can be resolved only by the individual judge in the context of a particular case. The issues to be weighed include:
It may seem unfair to deprive the person concerned of the benefit of such evidence.
If the person concerned has generally been of good repute, there are probably others who can so testify.
Such evidence from a judge may well put pressure on the trial judge or magistrate.
The outcome, whether favourable or unfavourable to the person charged, may well become the subject of ill-informed publicity, referable to the judge’s involvement.
It would be wise to consult the head of the jurisdiction if asked to give such evidence.
6.7 Use of the judicial title
Although there should be no need for a judge to conceal the fact that he or she is a judge, care should be taken not to create an impression that a judge’s name, title or status is being used to suggest in some way that preferential treatment might be desired or that the status of the office is being used to seek some advantage, whether for the judge or for someone else.
6.8 Use of judicial letterhead
Judges should avoid the use of a judicial letterhead in correspondence unrelated to their official duties in circumstances where the use of the letterhead might be taken to suggest a request for, or expectation of, some form of preferential treatment. To take a very obvious example, if a judge were to write a letter complaining to a service company about a defective repair job, it would be wrong to use a judicial letterhead. Similarly, if a judge had a disputed claim on an insurance policy, it would be unwise to use a judicial letterhead even though it may very well be a fact that the insurance company knows that their insured is a judge. It is, however, customary and proper for a judicial letterhead to be used for some private purposes connected with a judge’s office, such as writing or responding to notes sent on the occasion of a friend’s appointment or retirement from the bench.
6.9 Protection of personal interests
Judges should be circumspect about becoming involved in personal litigation, even if the litigation is in another court. Good sense must prevail and although this does not mean that a judge should abandon the legitimate pursuit or defence of private interests, their protection needs to be conducted with great caution to avoid creating any impression that the judge is taking improper advantage of his or her position.
6.10 Social and recreational activities
There is such a wide range of social and recreational activities in which a judge may wish to engage that it is not possible to do more than suggest some guidelines.
Judges should themselves assess whether the community may regard a judge’s participation in certain activities as inappropriate. In cases of doubt, it is better to err on the side of caution, and judges generally will be anxious and careful to guard their own reputation. A brief reference, far from exhaustive, to some “grey” areas may help judges to make their own decision with respect to those and other activities.
6.10.1 Social contact with the profession
There is a long-standing tradition of association between bench and bar, both in bar common rooms and on more formal occasions such as bar dinners or sporting activities. Many judges attend Law Society functions by invitation. The only caveat to maintaining a level of social friendliness of this nature, one dictated by common sense, is to avoid direct association with members of the profession who are engaged in current or pending cases before the judge. A similar test should be applied in cases of private entertaining, unless the other parties to the litigation have been approached and have no objection.
Circuit courts, however, may pose some difficulties. It is common for members of the legal profession in country areas to entertain the judge, either in a group or in private homes. The judge in accepting or offering hospitality must be and be seen to be even-handed towards legal practitioners engaged in the current sittings. The judge should not be regularly entertained by or retain too close a relationship with a practitioner who regularly has litigation before the court.
Similarly, in country sittings involving criminal cases, care must be taken not to accept assistance outside the court from police who might be appearing in cases in the sittings. Some judges consider that they should not rely on the police to supply transport to and from the courthouse in order that it might not be thought that the judge is siding with those regarded as representing the prosecution.
6.10.2 Membership of clubs
Assuming that there is no breach of the law involved, this is a matter for the individual judge to decide. There is a view held by some judges that it is undesirable for a judge to be a member of a club or society that permits only exclusively male or female membership. Other judges disagree. Some judges have been members of such clubs or societies without giving rise to any embarrassment in the discharge of their judicial duties, or without affecting the reputation of the judiciary. This is not an issue on which there is any generally held view, but opinions may well be changing.
6.10.3 Visits to bars and clubs; gambling
This is also a matter for the individual judge. A judge should give thought to the perceptions that might arise from, for example, the reputation of the place visited, to the persons likely to be present, and any possible appearance that the premises are conducted otherwise than in accordance with law.
6.10.4 Sporting and other club committees
There is in general no objection to a judge serving on such committees so long as they do not make unreasonable demands on a judge’s time. Some judges consider that a judge should not sit on a committee exercising disciplinary powers.
CHAPTER SEVEN
7 POST-JUDICIAL ACTIVITIES
The purpose of this chapter is not to dictate to retired judges, but to give guidance to serving judges who are contemplating or planning for their retirement.
7.1 Professional and commercial activities
There are many judges, particularly those who have remained in office to the age of statutory retirement, who choose to undertake only recreational activities in retirement. They thereby avoid the sometimes difficult and controversial decisions that have to be taken by those who seek a more active and remunerative role.
The receipt of a judicial pension, for the most part publicly funded, is not in itself a bar to post judicial remunerative activities. Most judges on appointment make a substantial financial sacrifice in terms of earning capacity. Nor does it seem necessary, in the discussion that follows, to draw any distinction in principle between:
Those who have reached the statutory age of retirement;
Those who, after quite lengthy judicial service, have chosen to retire early for reasons other than ill-health;
Those relative few who have found themselves ill-suited to the judicial role and have resigned after a short term in office.
If there is one guiding principle, a former judge should be satisfied that any proposed professional or commercial activity is not likely to bring the judicial office into disrepute, or put at risk the public expectation of judicial independence, integrity and impartiality.
7.2 Professional legal activities
7.2.1 Practice at the Bar
This is a “grey area” in which it is not possible to formulate Australia-wide guidelines. A judge contemplating retirement should consult the Australian Bar Association, and the local Bar Association or Law Society for relevant rulings. All however proscribe appearance as counsel in a court of which the judge was formerly a member, for various periods ranging from two to five years.
Australian experience suggests, however, that this topic is most likely to concern those who have resigned soon after appointment.
7.2.2 Practice as a solicitor
Active association with a firm of solicitors, whether as a partner, consultant, or in some other capacity, is permissible, but preferably not sooner than a year or so after retirement. Some judges consider that care should be taken to ensure that the firm does not take active steps to promote itself by overt reference to the judge’s former judicial status.
7.2.3 Alternative dispute resolution – mediation and arbitration
It has become quite common for judges who have retired, whether early or at full retirement age, to be appointed or to offer their services as mediators or arbitrators. Although some judges do not approve of such activities, they are not at present subject to any legal or professional restraint.
7.2.4 Appointment as an acting or auxiliary judge
Many States make provision for a retired judge to return to the court, for temporary or intermittent periods, as an acting judge.
A retired judge who sits from time to time as an acting or auxiliary judge should consider carefully the appropriateness of other activities that the retired judge might be undertaking. The exercise of the judicial office on a part-time basis may require the observance of, or at least consideration of, some of the restrictions identified in this publication. Particular care should be exercised in relation to activities undertaken concurrently with part-time judicial work.
7.3 Commercial activities
It is permissible to engage in commercial activities. However, a retired judge should consider whether his or her activities might harm the standing of the judiciary, because of a continuing association in the public mind with that institution.
7.4 Political activity
The restraints that prevent a serving judge from having any involvement in politics cease to apply on retirement but, as with commercial activity, the retired judge should consider whether the particular activity undertaken might reflect adversely on the judiciary, because the public might continue to associate the retired judge with that institution.
7.5 Participation in public debate
A retired judge has the same freedom as an ordinary citizen to engage in public debate, and in many cases is well qualified to do so, particularly in matters touching the administration of justice generally. A retired judge should, however, consider whether a contribution to public debate is appropriately identified as coming from a retired judge.
7.6 Community and social activities
A retired judge has the freedom of any citizen to engage in chosen recreational and other community and social activities untroubled by the risks of a conflict of interest or perception of bias which have to be weighed by a serving judge, as earlier discussed.
Even in retirement, however, a former judge may still be regarded by the general public as a representative of the judiciary, and any activity that might tarnish the reputation of the judiciary should be avoided.
