The future of judicial education[1]
In this article the former Chief Justice and former President of the Judicial Commission of NSW considers the importance of an impartial and independent Judicial Commission and judge-led education.
For almost ten years I had the privilege of serving as President of the Judicial Commission of NSW,[3] which was described by Professor Sallmann in an article published in 1993 as “[the] Rolls Royce of judicial education bodies in Australia”.[4] As a glance at the published accounts of the Commission will show, the reference must have been to the quality of its work, not its cost.
The educational role of the Commission has received both national and international recognition. It provides orientation and training programmes for newly-appointed judges and magistrates, and continuing education for serving judicial officers. In co-operation with the Australian Institute of Judicial Administration, it conducts National Judicial Orientation Programmes. There is no national judicial college in Australia of the kind that exists in England,[5] Canada,[6] and New Zealand.[7] However, such a body may emerge. Whatever form it takes, those responsible for its establishment will have a good deal to learn from the history and experience of the Judicial Commission of NSW.
The need for education
Judicial education is no longer seen as requiring justification. We are past the stage of arguing about whether there should be formal arrangements for orientation and instruction of newly-appointed judges and magistrates, and for their continuing education. Of course there should.
There were approximately 880 judicial officers in Australia (at the time of writing).[8] The idea that all, or most, of them would have had sufficient practical experience before appointment to slip comfortably into their judicial roles, without need of further assistance, and that thereafter throughout their judicial careers they would keep abreast of developments in the law and in judicial technique on their own initiative, is unacceptable. It is also unfair to the litigating public, and to the judicial officers themselves.
Being thrown in at the deep end might be fun for an experienced swimmer, but nowadays the number of newly-appointed judges who have had extensive practical experience as advocates in the jurisdictions in which they will sit is diminishing. Most magistrates never did fall into that category; in NSW most magistrates have in the past come from within the Public Service, although in recent years more have been recruited from elsewhere, including the practising profession. As to judges, it is no longer true that they almost all come from the ranks of experienced advocates. Furthermore, those that are from that background tend to have increasingly specialised, and therefore narrower, practices before appointment.
There are relatively few newly-appointed judges now who would claim to be familiar with all aspects of the work they are assigned on the bench. Moreover, it is now accepted that competent judging requires skills and techniques that are not learned or acquired as an advocate. Judicial education is an aspect of professionalism. Continuing education is as important for judges and magistrates as it is for practitioners.
Judge-led education
During my time as Chief Justice of NSW,[9] and President of the Commission, I saw a major change in the attitude of the judiciary towards this subject. Initial hesitancy and scepticism was overtaken by widespread enthusiasm. I have no doubt about one of the principal reasons for the Commission’s success. Its skilled staff have performed splendidly, but their achievements have been possible largely because the Commission is controlled by the judiciary: it is independent of the executive; and its educational activities have been controlled and assisted by judges and magistrates. That accounts for its acceptance. It enjoys, amongst the judiciary, what is sometimes referred to as “credibility”. This is the usual experience in common law countries where judicial officers are appointed in the manner with which we are familiar.[10]
There are two reasons why judicial control of formal judicial training and continuing education is essential. The first is a matter of principle. The second is a matter of practicality.
A matter of principle
The first reason concerns the constitutional principle of judicial independence. The purpose of the independence of the judiciary is to ensure both the reality and the appearance of impartiality in judicial decision-making. That purpose would be undermined if the training and continuing education of judicial officers were in the hands of people who do not share the judiciary’s independence.
There are those, both inside and outside government, who would welcome any opportunity to influence the opinions and attitudes of judges and magistrates, and who, given the chance, would not hesitate to use educational programmes for that purpose. According to their own reasoning, this would be a useful thing to do. To such people, judicial independence is often a source of frustration. Some of them regard impartiality as a myth. They would be anxious to assist in developing what they would regard as a sound and proper approach to decision-making on a variety of issues.
The dividing line between appropriate education, and inappropriate propaganda, is sometimes indistinct. Some well-meaning enthusiasts have difficulty in accepting the idea that, in adversarial litigation, the presiding judicial officer is required to be, and to appear to be, even-handed; notwithstanding the indignation which the conduct of one of the parties may arouse in some quarters. Many groups, in government and in the community, would like to “inform” judicial officers of matters which might not be proved in evidence, but which they believe should have a bearing on the manner in which powers and discretions should be exercised.
A desire to proselytise the judiciary is harboured by a large number of people, some of whom have conflicting objectives. The Attorney General is regularly exhorted to direct the Commission to instruct judicial officers in various forms of “right thinking”, as though he or she has power to direct the Commission and as though the Commission has power to direct judges and magistrates.
If judges and magistrates are to maintain their independence, and the appearance of strict impartiality, then their judicial training and education cannot be controlled by those who do not share their independence. It certainly cannot be controlled by those of whom they are meant to be independent.
A practical requirement
The second reason is related to the first, but is essentially pragmatic. For judicial training to be effective, it must be provided by an organisation with such standing amongst judges and magistrates that they will give it their full co-operation and support. An organisation controlled by the executive government would simply be ignored by a substantial section of the judiciary. People cannot be effectively compelled to be educated.
Furthermore, the Judicial Commission of NSW has always depended heavily upon the input of serving and retired judicial officers in formulating and providing its programmes. They are well-placed to identify the practical needs of those to whom the programmes are directed, and they have been generous in giving their time and services. Their support is not sufficient for success; the input of trained educators is also of vital importance. However, although their support is not sufficient, it is necessary.
Judicial independence
Those who pay the piper are accustomed to calling the tune. However, the executive government in NSW has respected the statutory independence of the Judicial Commission, even though it provides the funds for its operations. This is not surprising; the same applies to the entire NSW judicial system. The money which the government spends on the judicial system comes from taxpayers. In Australia, taxpayers are entitled to expect that so much of their money as is applied towards the operations of the judiciary will be applied in a manner which respects the independence of the judiciary, and not in a manner which undermines it.
If, at some time in the future, there is to be a National Judicial College, as there ought to be, then a lesson to be learned from the first 12 years of operation of the Judicial Commission of NSW is that it should be established as part of the judicial branch of government, and it should participate fully in the independence of the judiciary.
Another lesson to be learned from the experience of the Judicial Commission is as follows. The judicial members of the Commission are the heads of the various NSW courts. The Chief Justice of the Supreme Court is the President, and all other heads of jurisdiction are members of the Commission. This is a matter of considerable practical importance. Judicial education programmes are tailored to the needs of each particular court. Their success depends upon the support of the head of the court. It is difficult to imagine how a programme could work successfully in relation to a court against the opposition of the head of jurisdiction. At a national level, the counterparts of the heads of jurisdiction are the members of the Council of Chief Justices. As a matter of practicality, their support for any particular model of a National Judicial College would be essential.
There has already been some consideration by the Council of Chief Justices, the Australian Institute of Judicial Administration and the Judicial Conference of Australia, of this subject. Such consideration is still at an early stage, but it may be assumed that the Council of Chief Justices would not support any proposal that was regarded as compromising judicial independence.
One of the principal difficulties to be addressed if such a body is to be established is the matter of funding, and the related question of the role of the various jurisdictions concerned. Until recently, the federal government has been a fairly minor player in the field of judicial appointment and activity.
Until the establishment of the Federal Court and the Family Court, the federal judiciary was very small in number. This is now changing, although the number of federal judicial officers is still much smaller than the corresponding numbers in NSW, and is somewhat smaller than the numbers in Victoria and Queensland. This may explain why, so far, there has not been much pressure for the setting up of a national body, and why NSW, acting sometimes in co-operation with the Australian Institute of Judicial Administration, has taken the lead in judicial education. It is the jurisdiction with most at stake. A National Judicial College will require a considerable exercise in co-operative federalism.
[1] Published in (1999) 11(1) JOB 1, updated 2021.
[2] Former Chief Justice of Australia.
[3] 1988–1998.
[4] P Sallmann, “Comparative judicial education in a nutshell: a cursory exposition” (1993) 2 JJA 246 at 253.
[5] The Judicial Studies Board.
[6] The National Judicial Institute.
[7] The Institute of Judicial Studies.
[8] The Judicial Commission’s figures record that on 26 October 1998 there were 877, of whom 266 were appointed by the NSW Government. In March 2019, there were 1084 judges and magistrates in Australia, see Judicial Commission of NSW, “Number of judges and magistrates in Australia, March 2019” at www.judcom.nsw.gov.au/number-of-judges-and-magistrates-in-australia-march-2018-2/, accessed 15 September 2021.
[9] 1988–1998.
[10] Some care needs to be exercised in considering the United States experience, especially in relation to those State jurisdictions where judges are elected.