Judicial bullying: let’s have a conversation1

Kate Eastman AM SC2

Bullying may be difficult to define, but examples of bullying in courtroom situations are intimidation, threats, humiliation, shouting, sarcasm, victimisation, physical, verbal or emotional abuse, belittling, ostracism, rumour-mongering and disrespect. The courtroom is hierarchical and adversarial. An experience of bullying can undermine a practitioner’s confidence and capacity to work, and diminishes public trust in the integrity of the judicial system. The general workplace laws that regulate bullying and harassment do not apply, or are inadequate to respond to, bullying in a courtroom setting. The Quality of working life surveys conducted by the NSW and Victorian Bar Associations and the International Bar Association found bullying by judicial officers to be widespread. The Law Council and Australian Bar Association have published professional standards for judicial officers, and courts have introduced policies. The author makes a number of practical suggestions on how to respond to judicial bullying and options for getting assistance and making a complaint.

Bullying, like all unacceptable behaviour, also erodes trust.3

Introduction

A courtroom is a unique working environment. It is hierarchical, adversarial and stressful. The stakes are high. The outcomes can be life changing.

Barristers’ work is in public, for all to see. Even more so with online and live-streamed hearings. We share this workplace with judges, associates, tipstaves, court attendants, transcribers, jurors, witnesses, the sheriff, other lawyers, the media and the public. We have no choice or control over who will be our opponents or the judges we appear before. We cannot object or refuse to appear before a particular judge because we don’t like the judge or the judge’s style.

While we may appear before the same judge many times, for our clients it may be their one and only experience in court or with a judge. When we are in court, our clients see us play a particular role. In the court setting, our language and demeanour may be different when addressing the judge compared to our communication style with clients and colleagues. We observe a level of formality in the courtroom setting that is laden with rituals and rules with respect to the nature of our engagement with a judge during trial.4 We must observe our ethical duties to the court.

When we become part of this culture and its rituals, we accept, tolerate and may resign ourselves to accepting that this is just the way it is. Legal practitioners are reluctant to behave in a way which challenges the hierarchy in court.5

In his article, “Bullying from the bench”, Professor Steven Lubet, the Director Emeritus of the Bartlit Center of Trial Advocacy at Northwestern University describes the “stylized demonstrations of obeisance” in litigation:6

We stand when the judge enters and leaves the room. Our “pleadings” are “respectfully submitted”. Before speaking, we make sure that it “pleases the court”. We obey the judge’s orders and we even say “thank you” for adverse rulings.

Arguably, the formality, obeisance and ethical obligations should all operate to make working in a courtroom a psychologically safe working environment free from bullying and harassment.

Professor Amy Edmondson describes “psychological safety” in a workplace as follows:7

The term is meant to suggest neither a careless sense of permissiveness, nor an unrelentingly positive affect but, rather, a sense of confidence that the team will not embarrass, reject, or punish someone for speaking up. This confidence stems from mutual respect and trust among team members.

She makes the point that psychologically safe workplaces are not about being “nice”. Likewise, it is not about feeling comfortable all the time.8 Rather it is about knowing the boundaries and what to expect when working in a particular workplace setting.

Yet, we know a court room can be an unsafe working environment. A former Chief Justice of the Federal Court, the Honourable James Allsop AC said:

In a time gone by, when I began practice, appearing in the NSW Supreme Court sometimes felt like participating in a dangerous blood sport. Some judges appeared to enjoy pulling the wings off baby barristers.9

I note his Honour was admitted to the Bar in 1981.

More than forty years on, “blood sport” continues to be used to describe the experience of judicial bullying. In October 2023, the Honourable Judge Glen Cash of the District Court of Queensland delivered a speech titled “Judicial bullying: the last of the legal bloodsports?”. Judge Cash said:10

The first is the literal meaning of the phrase — a kind of bloodsport that takes place in the forensic, rather than gladiatorial, arena. The second sense … is the idea that judicial bullying is a bloodsport that is “legal” because it is, to some degree, tolerated or expected in our adversarial system.

A review of papers and presentations about judicial bullying reveal it is not uncommon for current or retired judges to recount their experiences of being bullied prior to their judicial elevations. During seminars or in writing, current and retired judges refer to their time as advocates and many recall, by name, the judges who bullied them. They often recount a description of the bullying and how they felt in the moment. However, most do not disclose whether they made a complaint or took any other action to address the bullying conduct.11 In telling their lived experience, there appears to be a tacit acceptance that bullying was part of the culture or a rite of passage.12

The war stories are not confined to judges who experienced bullying in a former professional life. Older and experienced practitioners also share their lived experience of being humiliated or bullied when talking about what to expect when becoming a barrister or their personal journeys of a life at the Bar.

In June 2022, The Right Honourable Lady Rose of Colmworth DBE, Justice of the Supreme Court of the United Kingdom spoke on the topic of “What makes a good judge?”.13 She referred to the changing attitude to judicial rudeness and bullying. She said:14

Older practitioners relating “war stories” of how they were mistreated by former judges should not be a source of admiration but rather, a sad indictment that this issue has not been addressed earlier. Just because one has suffered the humiliation of judicial bullying and “lived to tell the tale” does not mean that it should be an experience visited upon the newer members of the Bar. Rather, it should be the trigger for right-thinking members of the Bench and Bar to ensure that such behaviour is treated with opprobrium.

Lady Rose observed that unpleasant behaviour in court had fallen so far out of fashion because younger lawyers have been educated in a school and university system that takes bullying seriously and they are, quite rightly, no longer prepared to put up with it.15

The war stories reveal the lived experience of being bullied is seared in one’s memory. Not just what was done but the personal impact or feeling. Bullying can evoke feelings of shame, humiliation, embarrassment and undermine a person’s confidence, reputation and capacity to work. A personal experience of being bullied may have both immediate and long-term adverse effects. Being on the receiving end of judicial bullying can be profound and materially change the way a barrister approaches any appearance in court. Once bullied, there is an underlying fear and concern it may happen again, either by the same judge or another judge.

The war stories reveal why bullying undermines psychological safety in the shared workplace of the court or tribunal room. Isolated incidents of bullying or harassment may cause a person to feel bullied and have an adverse effect on their health and safety. If the most powerful person in the room, the judge, engages in bullying and harassment — where do we go? What should we do? There is a reluctance to take action or complain. As one commentator observed, for legal practitioners the capacity to make a complaint after an incident may seem like “the ambulance at the bottom of the cliff”.16

Of course, I am not suggesting that every judge, every appearance or every interaction will involve judicial bullying and harassment, far from it. Many judges conduct themselves and their courts with courtesy, respect, and an understanding of the pressure, stress and demands of the environment. It can be a pleasure to appear before those judges and one leaves the court feeling confident, heard and knowing our clients have had a fair hearing and we have been treated with respect.

As the Honourable Michael Kirby AC CMG said in 2014, it was essential to keep the problem in perspective:17

Although there are a few serial judicial offenders in the judiciary, who are widely known in the legal profession, in my experience, the problem of judicial bullying is not widespread. Most judges are aware of the need to keep their personalities in check when they are exercising public power.

We need to change the conversation about judicial bullying from war stories and consider what we as barristers can do, separately and collectively. I want to challenge the entrenched view that bullying is inevitable, a rite of passage and, if you survive, a war story you can tell those following you into the profession as part of your cache of war stories about life at the Bar. We need to have a conversation.18 To address judicial bullying, we need to understand what it is understanding of what it is, why it occurs and what structural or organisational factors are needed to eliminate bullying or the risk of bullying conduct continuing.

What is and what is not workplace bullying

Bullying cannot be exhaustively defined. In a workplace context, bullying occurs by words or actions and may be described as intimidation, threats, humiliation, shouting, sarcasm, victimisation, verbal abuse, emotional abuse, belittling, harassment, coercion, ganging-up, isolation, freezing-out, ostracism, innuendo, rumour-mongering, disrespect, mocking and discrimination.19

Employment laws

Under the Fair Work Act 2009 (Cth) (FW Act), a “worker” is bullied at work if an individual (or a group of individuals) repeatedly20 behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and that behaviour creates a risk to health and safety.21

Whether the discomfort experienced by a worker rises to the level of bullying must be determined on its facts, having regard to the particular circumstances and context. Not all behaviour that causes distress or discomfort will be bullying.22 For example, in a workplace setting, giving feedback on a person’s performance, requiring improvement in performance or taking disciplinary action is not bullying if it is reasonable or may be characterised as “reasonable management action”. As the Fair Work Commission explains:23

The law accepts that managers and employers may need to act if a worker is not doing their job well. They can take “reasonable management action” to:

  • help the employee improve their work

  • address poor performance or behaviour.

It is “reasonable management action” for an employer to:

  • start performance management processes (such as a performance improvement plan)

  • take disciplinary action for misconduct

  • tell a worker about work performance that is not satisfactory

  • tell a worker their behaviour at work is not appropriate

  • ask a worker to perform reasonable duties as part of their job

  • take action to maintain reasonable workplace standards.

But the way the employer takes these actions must also be “reasonable”. If they are not reasonable, and they are repeated, these actions could still be bullying.

The FW Act does not apply to legal practitioners who are bullied by clients, opponents or judicial officers in court, notwithstanding it is a shared workplace.24

Professional conduct and ethical rules

Bullying is described in r 125 of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) to mean:

unreasonable behaviour that could reasonably be expected to intimidate, degrade, humiliate, isolate, alienate or cause serious offence to a person.

Unlike the FW Act, this definition does not require the barrister to engage in “repeated” behaviour. The definition captures a type of behaviour (assessed as “unreasonable”) that could “reasonably” be expected to have a particular effect or impact on another person. Barristers who engage in bullying breach r 123(1)​(c).25

The prohibition applies to bullying in the course of, or in connection with legal practice or their profession and includes:26

conduct in connection with a barrister’s profession includes, but is not limited to:

(a) 

conduct at social functions connected with the bar or the legal profession, and

(b) 

interactions with a person with whom the barrister has, or has had, a professional relationship.

Work health and safety laws

Workplace bullying is recognised as a health and safety issue.27 The Work Health and Safety Act 2011 (NSW) (WHS Act) applies to all persons who conduct a business or undertaking in the WHS Act. Persons conducting a business or undertaking within the meaning of s 5(1) WHS Act have a range of duties to prevent the risk of injury and, so far as is reasonably practicable, ensure the health and safety of other persons are not put at risk from work carried out in that workplace.28

Safety includes a positive duty to eliminate psychosocial hazards. Safe Work Australia says:29

A psychosocial hazard is anything that could cause psychological harm (eg, harm someone’s mental health). Common psychosocial hazards at work include:

Kylie Nomchong SC, the former Chair of the NSW Bar Association’s Wellbeing Committee, has suggested:30

[T]here is an argument that the court system is a “person conducting a business or undertaking” within the meaning of s 5(1) of the Work Health and Safety Act. If so, court staff are workers pursuant to s 7 of the Work Health and Safety Act, and courts are a workplace under s 8 of the Work Health and Safety Act. As such, the courts are under an obligation to the court staff to protect them against the risk of injury from judicial bullying, particularly, if known (or capable of being known) and not acted upon. Pursuant to s 19(2) of the Work Health and Safety Act, the courts must ensure, so far as is reasonably practicable, that the health and safety of other persons are not put at risk from work carried out in that workplace. Barristers and solicitors are capable of being “other persons” in that context. [citations omitted]

Meeting the WHS Act obligations requires more than a response after the bullying occurs. It requires proactive action. This means identifying risk, assessing the risk and developing a proactive plan to eliminate the risk. This is not an easy task in the area of psychosocial risks and promoting psychological safety. We can contemplate what physical risks might occur in a courtroom, but psychosocial risks in a courtroom will arise because of the interpersonal interactions in the courtroom.

Sexual harassment and hostile working environments as a form of bullying

In the context of workplace bullying, sexual harassment is a form of bullying. The Sex Discrimination Act 1984 (Cth) (SD Act)31 proscribes sex-based harassment, sexual harassment, being subjected to a hostile working environment, discrimination and victimisation as unlawful conduct:

  • sex-based harassment is unwelcome conduct of a demeaning nature done because of a person’s sex if a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.32

  • sexual harassment is unwelcome sexual advances, requests for sexual favours or sexual conduct if a reasonable person having regard to all the circumstances, would have anticipated the possibility of the conduct offending, humiliating or intimidating the person to whom the conduct is directed.33

  • being subjected to a hostile working environment occurs when any conduct in a workplace that a reasonable person, having regard to all the circumstances, would have anticipated would have the possibility of offending, humiliating or intimidating a person because of the person’s sex.34

The Respect@Work report35 highlighted the prevalence of sexual harassment in Australian workplaces and the gaps in understanding and legal protections. The legal profession and the courts have not been immune to incidents and allegations of sexual harassment.

On 22 June 2020, the Honourable Susan Kiefel AC KC, Chief Justice of the High Court of Australia, announced the High Court had investigated allegations of sexual harassment against a former Justice and it acted to commission an independent investigation. The investigation found that six former associates had been harassed.36 At the time, the Chief Justice said “[t]here is no place for sexual harassment in any workplace”.37 She apologised on behalf of the High Court to the women.

The judge concerned did not participate in the investigation and through his lawyers said the judge “categorically denied” the allegations.38

The revelations were a “wakeup call” to the legal profession and resulted in a number of reviews into relevant policies and practices.39 The High Court subsequently introduced a Justices’ policy on workplace conduct in March 2022 and updated it in November 2023.40

On 14 July 2020, the Attorney-General of Victoria and the Chief Justice of the Supreme Court of Victoria jointly initiated a review of sexual harassment across the Victorian courts and Victorian Civil Administrative Tribunal. The Supreme Court published the investigation report and the initiatives implemented in response to the report, including further investigations, training and education and revised policies.41

In October 2020, the South Australian Attorney-General asked the Commissioner for Equal Opportunity to conduct an independent review into harassment in the legal profession. This resulted in a report and 16 recommendations.42

Allegations about inappropriate sexualised behaviour by judicial officers continued to emerge.43 The allegations were generally in relation to a judicial officer’s treatment of associates or court staff. Over the past few years, many courts have updated or introduced policies directed to appropriate workplace conduct, including for judges. While these policies describe work, health and safety obligations, express a “zero tolerance” approach to bullying and harassment and describe pathways for making complaints, they are generally confined to the treatment of employees who work in the courts and court administration.44

Following amendments in September 2021, the SD Act applies to barristers (as persons conducting a business or undertaking) and also to Commonwealth and NSW judicial officers.45 In December 2021, the Law Council of Australia issued the National model framework addressing sexual harassment for the Australian legal profession.46

In December 2022, the SD Act was amended to introduce s 47C, requiring “employers” and “persons conducting a business or undertaking” to take reasonable and proportionate measures to eliminate, as far as possible, sexual harassment, sex-based harassment, sex discrimination, conduct creating a workplace environment that is hostile on the ground of sex, and related acts of victimisation.

In December 2023, the Australian Bar Association released a Best practice guide to barristers and meeting the positive duty.47 The advice and content contained therein are also of assistance in understanding how the positive duty could be applied effectively in the courtroom.

Judicial bullying

For the purpose of this paper, “judicial” means all judicial officers,48 including magistrates, commissioners of inquiries and royal commissioners — it is also intended to include tribunal members and those in quasi-judicial roles. It is intended to cover all courts, tribunals and inquiries — such as Royal Commissions.

This paper is focused on conduct in the courtroom and the public aspect of bullying. I have not addressed the conduct of judicial officers in their chambers with respect to their interaction with associates, tipstaves, assistants, court staff 49 or other judges.50 Likewise, if a judge is bullied by a barrister or solicitor.51

In 1995, John Basten QC (as his Honour then was) addressed the need for judicial standards. He said “if judges are required to perform, they must know in advance what standards are required of them. Those standards should encompass both personal and judicial behaviour”.52

In 2021, the then Chief Justice Allsop spoke about the culture of the legal profession. He said:53

We are now at a moment in time where, overwhelmingly, the public and the profession, rightly so, expect a higher standard of behaviour from each other and from judges. We must meet those expectations. As repositories of privilege and power, judges are leaders in the community and so play an important part in setting or reinforcing a standard of behaviour in the legal profession generally and for the judges around them and barristers before them.

However, there is “no universally enforceable authoritative definition or set of standards for what constitutes actionable misbehaviour or misconduct of a judicial officer”.54 There is no statutory definition of “judicial bullying”.

Judicial consideration of judicial standards and judicial bullying

There is limited judicial consideration identifying whether judges have duties with respect to the treatment of legal practitioners in court and the content of the duty.55

In Damjanovic v Sharpe Hume & Co56 Mason P, Sheller JA and Rolfe AJA described the duties of judicial officers in the conduct of the trial. At [159], they referred to Toner v AG NSW57 where Kirby P, Clarke JA and Hope AJA said:58

Whilst there are duties of courtesy imposed upon legal representatives as a [corollary] of the privileges they enjoy as advocates, there is a correlative duty in judicial officers to listen patiently and carefully and to retain self control at all times.

They went on to address the duties of judicial officers, as follows ([160]–[163]):

The duties that judicial officers listen patiently and carefully and retain self control at all times have various purposes. First, a patient and careful listening to the evidence will enable the judicial officer to understand, as well as possible, the cases being made by the parties and the evidence relevant to those cases. On that basis the judicial officer is in a far better position to make a proper evaluation of the evidence in the light of the issues raised and the submissions made. In these circumstances, the judicial officer should be in a far better position to decide the case properly, as opposed to one who does not follow those courses.

Secondly, the observance of such duties upholds the standing of the Court in the community as providing careful and impartial adjudication of disputes between the litigants. Obviously, in the vast majority of cases, one party will lose. There is much anecdotal evidence to support the view that a losing party, whilst usually disappointed, will accept that situation if that party believes that his or her case has been considered properly and thoroughly — in other words if the losing party is able to say that the Court has provided him or her with a “fair go”.

Thirdly, the observance of these duties does not mean that the Court is obliged to listen to endless repetition or the advancing, beyond a point of reaching a proper understanding, of submissions which are groundless. However, there is a difference between that situation and allowing the orderly development of evidence and submissions. Even if the first position is reached, the Court can bring it to an end by stating that it understands the point sought to be made, assuming that it does, and inviting the party to proceed to the next point.

Fourthly, and this is probably the most important consideration, failure to observe the duties leads to an erosion in the public’s perception that the Court is administering the law fairly to all parties and, thus, to a lack of confidence in the administration of justice. Confidence in the judicial system plays a very important part in maintaining confidence in the orderly working of society. Conduct by a judicial officer, which may cause that confidence to be diminished, is to be deplored.

There is also limited judicial consideration of what type of conduct departs from a duty to “to listen patiently and carefully and to retain self-control at all times” that will constitute “judicial bullying”.59 Generally, any judicial consideration has arisen in the context of allegations of judicial bias60 or claims of an unfair trial.61

For example, in Adacot and Sowle62 the appellant alleged apprehension of bias and denial of a fair trial.63 The judicial officer’s conduct included:

  • impugning the honesty of counsel64

  • impugning the professionalism of counsel65

  • rudeness to counsel66

  • hectoring, bullying, insulting and demeaning behaviour.67

The Full Court concluded:68

The tone, nature and ferocity of his Honour’s comments could never be seen as justified, and in our view resulted in the [appellant] not receiving a fair trial and raised the identified apprehended bias, that no matter what the [appellant’s] case was as presented, it would be rejected.

There have been a number of cases describing judicial bullying, but they are often grounds for apprehended bias applications or claims of an unfair trial.69 These have included:

  • critical comments that are purely gratuitous or serve only to insult, harass or threaten a person70

  • criticism on a personal level71

  • vulgar language, discriminatory language and swearing72

  • threats, both implicit and explicit73

  • shouting or speaking in a menacing tone74

  • in a tribunal, when the member’s tone and manner in questioning a litigant was loud, aggressive and interrupting, often raising his voice and displaying impatience, rudeness, and being scornful or incredulous about the litigant’s evidence.75

Policy positions describing judicial bullying

There are some policies addressing and describing judicial bullying. The Australasian Institute of Judicial Administration (AIJA) has published a Guide to judicial conduct, now in its 3rd edition (February 2023). In 2020, a paragraph was added to the Guide to judicial conduct, at the end of the section on “Conduct generally and integrity”, as follows:76

Judges must conform to the standard of conduct required by law and expected by the community. They must treat others with civility and respect in their public life, social life and working relationships. It goes without saying that Judges must not engage in discrimination or harassment (including sexual harassment) or bullying. In relation to these matters, Judges must be particularly conscious of the effect of the imbalance of power as between themselves and others, especially their Chambers staff, Court staff and junior lawyers. [emphasis added]

Notably, the paragraph does not ask judges to be conscious of the power imbalance between themselves and all those that appear before them.77 It is perhaps not a matter which is self-evident, nor does it necessarily go “without saying”.

In its 2022 consultation paper on judicial bullying, the Judicial Commission of Victoria acknowledged there is “a challenge in identifying when and where judicial conduct oversteps” the mark of robust and vigorous legal debate and adversarial exchanges “and can be characterised as bullying”.78

Following consultations with the Victorian legal and court sector, the Judicial Commission of Victoria published a Judicial conduct guideline on judicial bullying in May 2023. It applies in court and to the treatment of persons appearing in court.79 The guideline describes “judicial bullying” as follows:80

Judicial bullying is conduct by a judicial officer towards an individual that:

(a) 

is unreasonable; and

(b) 

includes, but is not limited to, conduct that a reasonable person would, having regard to all the circumstances, perceive as belittling, humiliating, insulting, victimising, aggressive or intimidating.

What is unreasonable is to be assessed objectively, with regard to the following factors:

(a) 

the functions of the judicial officer;

(b) 

the subject or target of the conduct;

(c) 

the tone or nature of the conduct;

(d) 

whether the conduct is momentary or sustained;

(e) 

the location, including the jurisdiction and type of proceeding (for in-court matters) in which the conduct occurs; and

(f) 

the overall context of the conduct.

The Judicial Commission of Victoria also outlines a “standard of behaviour expected of judicial officers” relating to in-court conduct, as follows:81

Robust and vigorous legal debate and adversarial exchanges are common in the courtroom. The judicial function often requires questioning and scrutinising evidence or testing and challenging submissions. Such exchanges go to the heart of the adversarial system and the interests of justice, ensuring relevant issues in a proceeding are ventilated and explored.

… To the extent that such conduct is respectful and courteous it is consistent with the standards of conduct generally expected of judicial officers.

Where a judicial officer engages in conduct that meets the definition of judicial bullying, then that conduct breaches the standards expected of a judicial officer. This is consistent with and reflects the principle that all persons coming before the court are entitled to be treated in a way that respects their dignity and with courtesy and respect.

It is important to recognise that momentary displays of frustration or annoyance do not necessarily evidence unprofessionalism or judicial bullying. Further, judicial officers may speak to legal practitioners in frank language and a robust way. Equally, addressing inadequate or incompetent representation (such as a lack of preparation) by a legal practitioner is not of itself inappropriate. What is relevant is how the judicial officer engages with the legal practitioner or displays any frustration or annoyance.

The Federal Circuit and Family Court of Australia’s Judicial workplace conduct policy acknowledges there should be a “culture of respect”. It states:82

The judges of the Court recognise their conduct must not undermine the community’s trust and confidence in their integrity, impartiality and independence.

The judges of the Court must promote a culture of respect and courtesy in their workplaces and in the performance of judicial duties.

The judges of the Court are committed to:

  • providing a workplace where the Court staff and all people who perform their work in the Court are treated with respect and courtesy;

  • wherever possible preventing or eliminating discrimination, sexual harassment, harassment and bullying.

[emphasis added]

The policy describes bullying as follows:83

Bullying is repeated unreasonable behaviours that create a risk to the health and safety of a person or group of persons.

Bullying can occur by:

  • communicating either verbally or in writing in an aggressive or disrespectful manner;

  • making unjustified or unreasonable criticism or complaints about a person;

  • imposing unreasonable work demands or constantly changing deadlines;

  • humiliating, shouting at or threatening someone;

  • setting tasks that are unreasonably below or above someone’s skill level;

  • excluding someone from taking part in activities that relate to their work;

  • spreading misinformation or malicious gossip.

Reasonable management action done in a reasonable manner is not bullying. This includes:

  • appropriate performance management;

  • providing constructive and courteous performance feedback;

  • legitimate disciplinary action;

  • reasonable supervisory practices;

  • allocating work in accordance with the terms and conditions of employment and the Court’s organisational practices;

  • giving reasonable directions;

  • making a complaint about the conduct of Court employee, if the complaint is made in an appropriate and reasonable way.

Academic research

There are some papers and articles describing judicial bullying. Douglas R Richmond in his article, “Bullies on the bench”,84 suggests that when judges move beyond occasional displays of anger, frustration or impatience, and intentionally abuse or denigrate those who appear before them, they may be fairly described as bullies. Bullying can occur by words or actions. There is no exhaustive list of the type of conduct that may be characterised as bullying.

However, many of the articles and papers about judicial bullying elide examples of judicial bullying with the cause of judicial bullying or discussion why judicial bullying is a problem. I will address the “why” issue below.

In October 2021, the Judicial Commission of NSW released the Handbook for Judicial Officers85 which includes a selection of papers on judicial officers’ relationship with the legal profession, bullying and harassment.86 Although numerous papers refer to judicial conduct reflecting courtesy, compassion, humility and people skills, there does not appear to be a code of conduct, or a similar NSW specific guideline for the conduct of judicial officers. There is no definition of judicial misconduct or bullying.

Prevalence of judicial bullying to identify the nature of the conduct

Understanding the prevalence of judicial bullying or examining complaints data might also provide some insight into what judicial bullying is. Observing patterns or themes in complaints about judicial conduct may be a “surrogate indicator of issues that undermine community perceptions of judicial behaviour and the integrity of the judicial system”.87

In Australia, there is little data about the prevalence of judicial bullying.88 The two main sources are practitioner surveys and complaints data. Neither are particularly reliable ways of identifying the prevalence of judicial bullying. Nevertheless, the surveys do reveal barristers’ experience of judicial bullying and harassment is real and persistent.

In 2014, the Law Council of Australia’s National report on attrition and re-engagement (NARS Report)89 made the following findings: 80% of women barristers experienced bullying or intimidation; 84% discrimination due to gender; 55% discrimination due to age; 40% of discrimination due to family responsibilities. The NARS Report found the experiences of bullying and harassment contributed to women leaving the legal profession.

Survey data

In January 2018, the NSW Bar Association conducted a Quality of working life survey of its members about their level of wellbeing including factors influencing the quality of their working life. One of the questions was directed to judicial bullying. Sixty-six percent (66%) of respondents surveyed had experienced judicial bullying.90

Respondents reported their experiences of different forms of judicial bullying, as follows:91

Qualitative responses from 494 barristers provided an insight into the differing forms of bullying that advocates in NSW have experienced. The responses recounted instances of verbal comments from the bench which were belittling or amounted to public humiliation in front of the barrister’s opponent, clients and observers in the court. Others recounted instances of excessively personal or otherwise unfair criticism. Also noted in the survey as a common type of bullying experienced by advocates was being repeatedly interrupted or being intimidated. Remarkably, there were accounts of angry outbursts of yelling and even screaming of derogatory comments. In addition, and disturbingly, there were also some accounts of inappropriate gender-based comments. Barristers also reported judicial bullying in the form of the imposition of unreasonable deadlines which demonstrated favouritism or bias towards one side.

The Australian Law Reform Commission’s (ALRC) recent report Without fear or favour: judicial impartiality and the law on bias commented on the issue of judicial bullying, with a focus on federal courts. The ALRC heard from 46 individuals through informal submissions as to their experiences before judges in the federal courts. The key themes reported were that litigants felt that they had not been able to put their case; that the judge had not considered the evidence; that they were not treated with respect; that they were warned by their lawyers of a judge’s reputation for unpredictable behaviour in court; and that there was no effective oversight.92

Complaints data

The complaint statistics for the year ending 30 June 2023 were published in the Judicial Commission of NSW’s Annual Report 2022–2023. The report noted:93

  • the complaint statistics have remained generally constant in the previous five years. In the 2022–2023 financial year, there has been an increase in the number of complaints which appear, on the face of it, to be either frivolous, vexatious, not made in good faith and/or with insufficient clarity (96 complaints received, with 71 examined and dismissed, three referred to the relevant head of jurisdiction and one withdrawn);94

  • although there had been an increase in the number of complaints received in the 2022–2023 financial year, this has not equated to an increase in the number of complaints being substantiated. The proportion of complaints which were summarily dismissed by the Judicial Commission, following preliminary examination, is consistent with prior years with over 96% of complaints being summarily dismissed after preliminary examination of the complaint in 2022–2023 (as compared against the 5-year average of 96%).95

Although the majority of complaints are dismissed, information gathered from the investigation of complaints is used by the Judicial Commission to further develop continuing judicial education sessions on topics such as: providing a fair hearing and avoiding bias; avoiding inappropriate comments and discourtesy; domestic violence and sexual assault issues; and cultural awareness training.

There is no publicly available data about complaints made about alleged bullying in the federal courts.

In summary, judicial bullying primarily focuses on the inter-personal interaction between the judge and advocate (sometimes also a witness) in court. Most of the examples describe verbal exchanges or judicial intervention in the way an advocate presents their case. However, anecdotally judicial bullying may also extend to other aspects of judicial behaviour, for example:

  • repeated mispronunciation of an advocate’s name

  • comments or criticisms of an advocate’s accent96 or appearance

  • misgendering an advocate. Most women barristers have experienced the “thank you gentlemen” comments which are insensitive and outdated. Barristers who identify as non-binary may experience misgendering in the way the judge addresses the barrister or repeated use of inappropriate pronouns to describe a witness

  • comments about pregnant women barristers and apparent reliance of common tropes or undated stereotypical views about the effect of pregnancy

  • a failure to accommodate or make adjustments for an advocate with disability (there have been examples of judges expecting vision impaired barristers to read text, whispering or refusing to repeat a direction for a barrister with a hearing impairment, routinely expecting barristers to stand when a barrister uses a wheelchair or ableist language to describe a person with disability)

  • imposing unreasonable timeframes for pre-trial preparation or submissions

  • making unnecessary personal criticisms of advocates in reasons for judgment

  • engaging in gratuitous and unfair gossip about advocates

  • threatening or making unfair and unjustified professional conduct complaints about the barrister.

Why does judicial bullying occur?

Understanding why judicial bullying occurs is necessary to ensure any statutory or policy responses and developing complaints pathways to address judicial bullying are appropriate, adapted and likely to be effective. A review of the literature, particularly when judges explain why judicial bullying occurs is insightful.

In 2004, Dyson Heydon, a former Justice of the High Court of Australia, appeared to suggest that judicial bullying may be explained by a judge’s response to an advocate’s perceived characteristics, saying:97

Judicial bias, bullying, impatience, ill-temper and incomprehension are all vices much more likely to emerge if no-one is present but the parties and their legal advisers, particularly when the victim of the misconduct is an unpopular or unattractive figure represented by weak, inexperienced or easily overborne lawyers.

In 2013, the Honourable Justice Glenn Martin AM described “judicial bullying” as:98

conduct engaged in by the judge against counsel which is designed to coerce that counsel into taking a particular course, not through the strength of any intellectual argument, but simply through the application of the power of the position of the person involved.

In 2023, the Honourable Judge Cash described “judicial bullying” as an abuse of power:99

the vice lies in the judge’s abuse of the power of their position. Even if the course desired by the judge is the proper one to adopt, it is bullying to seek to achieve it through an abuse of power in place of argument and reason.

Judge Cash has noted the “tension inherent in our system, where counsel and judges have different aims”.100 He referred to academic lawyer and ethicist, Monroe Freedman, saying:101

One probable reason for that tension is the fact that the judge and the advocates have different functions. The lawyers are committed to seek justice as defined by the interests of their clients, while the judge is dedicated to doing justice between the parties.

From the perspective of the judge, therefore, at least one lawyer in each case is attempting to achieve something to which her client is not entitled. From the perspective of the lawyer, however, the judge is always poised to deprive her client of something to which the client is entitled.

Sometimes, judicial bullying is explained away or excused by reasons of stress and the demands of judicial responsibilities.102 The pressures on judicial officers to manage lists and trials, deliver judgments in a timely manner with limited resources and assistance is well known.103 The Judicial Commission of NSW’s Handbook for Judicial Officers104 addresses the stress and vicarious trauma risks for judges.105 I doubt anyone would question that discharging judicial duties may be difficult and is stressful,106 but does this really explain or justify judicial bullying — be it in court, in chambers or towards a fellow judge?

Understanding why judicial bullying occurs requires more than describing particular incidents or behaviours. As Sir Geoffrey Vos, the Master of the Rolls, said in an excellent speech delivered on 1 December 2023,107 “I have deliberately avoided giving examples about exclusive behaviours and, even worse, about out and out bullying, harassment and discrimination. Examples sometimes cloud the message” about what can, and should be done, to provide legal communities and the judiciary with a more inclusive environment. He said “sometimes, it is valuable to be asked to stop and consider the unintended effects of conduct, that those dishing it out, probably regard as quite normal and acceptable”.

To address the issue, we need to consider a broader range of factors.108

First, there are personal characteristics of a judge that may predispose the judge to engage in bullying behaviours. The selection and appointment of judicial officers may not address personal characteristics, past conduct and their inter-personal communication style.

The AIJA recently published Emerita Professor Kathy Mack’s report on “Suggested criteria for judicial appointment”.109 Among many other highlighted skills and abilities, the report relevantly lists the following as important criteria:110

  • treat others with respect, and so inspire respect and confidence

  • exercise authority calmly and professionally, particularly when challenged

  • maintain control of courtroom, using fair direction or intervention

  • speak calmly, courteously, and patiently, even when necessary to be forceful

  • use or display humour with care, never at the expense of a court participant or relying on stereotypes

  • maintain appropriate demeanour even under pressure

  • avoid display of sarcasm, harshness, anger, rudeness or hostility

  • be aware of and thoughtfully manage one’s own emotion and the feelings of others, consistent with the judicial role

  • engage appropriately with a wide range of court participants, including skilled or unskilled legal representatives, represented and unrepresented parties, witnesses, jurors and court staff; and

  • be considerate, tactful and empathetic with others.

The report also notes:111

Undesirable judicial conduct, including bullying and harassment, and judicial stress, trauma and wellbeing all entail judicial emotion, and the intersection of judicial emotion with the feelings and behaviours of others. Improved emotion awareness will enable judicial officers to better manage their own responses to the demands of their work and so reduce undesirable conduct and improve wellbeing.

… Applying these criteria in a sufficiently transparent and fair process will mean those appointed to judicial office will have greater capacity to meet the sometimes unrelenting demands of the role, while maintaining their own wellbeing and serving the public well. This will improve the substance and appearance of impartiality, increase public confidence in the judiciary and support the legitimacy of judicial officers and their courts.

Second, experience as a barrister may not fully equip a person to make the transition from the solo nature of a barrister’s practice to the working environment of a judge, who will need to be aware of, or conform with, contemporary workplace policies and human resources departments. This is far from the organisation and structure of work at the Bar, being the “gig economy” sector of the legal profession, where working relationships are project-based, not long-term and not governed by employment law obligations. The stress on a barrister may be acute and focused on meeting court-imposed deadlines and the stress of conducting a trial. The stress on a judge has a direct character. It is more likely to be chronic stress to deliver judgments in a timely manner and manage a court list.

Third, there is no course or instruction manual on “how to become a judicial bully”. However, there may be cultural and historical expectations of how a judge is expected to conduct a courtroom and manage the participants. Modelling judicial behaviour on the personal experiences of other judges may lend itself to replicating historical and outdated behaviours based on the judge’s experience as a barrister.

The National Judicial College of Australia (NJCA) conducts orientation programs for newly appointed judges and magistrates.112 It is not clear from a review of the website and the publications that the issues of bullying and harassment are specifically addressed in the initial orientation training or on an ongoing basis. The College’s website suggests that a national curriculum continues to be work in progress:

In 2004 the National Judicial College of Australia initiated a process to promote the preparation of a national standard for the amount of time and funding that should be available for each member of the Australian judiciary for professional development.

The Standard was endorsed by the Council of Chief Justices of Australia, Chief Judges, Chief Magistrates, the Judicial Conference of Australia, the Association of Australian Magistrates, the Australian Institute of Judicial Administration and judicial education bodies. The Standard was reviewed in late 2010.

The recent ALRC Report recommendations noted that: “there is currently no publicly available curriculum or professional development pathway for Commonwealth judges. This means that, although a significant number of judicial education courses may be available, covering issues important for supporting judicial impartiality, there is no clear or transparent expectation that judges will attend those courses specifically throughout their judicial career.”113

The NJCA, as the national leader in judicial education and training, is committed to meeting the need for a coherent and high quality system of judicial education and training in Australia through the development and delivery of a dynamic national curriculum (the National Curriculum). The National Curriculum will be a living framework, designed to allow for adjustments to new developments, changing demands, actions and will be referenced based on the contribution of judicial education stakeholders committed to its implementation. Importantly, the National Curriculum will also provide a benchmark for the implementation, monitoring and the evaluation of judicial education and training into the future.

Once approved by our Council, further details about the National Curriculum will be available shortly on the NJCA website.

Fourth, judges are human and they may also lack confidence and skills to maintain the authority required in a court. They may express their stress, frustration and consider those appearing before them are incompetent, lazy or they themselves could do a far better job. However, it is not the judge’s role to undertake performance reviews of practitioners or seek to “fix” poor performance by bullying the person. The behaviours which are intended to “control” and “exert authority” may manifest as bullying.

Fifth, bullying is about power, how power is exercised and the absence of consequences when power is misused.114 The very purpose of discharging judicial functions is to exercise power, and to do so without fear or favour. The independence and the prohibition on the interference of a judge’s independence reinforces the sense of power.

Sixth, bullying may arise because of different ways unconscious bias works. For example:

  • affinity bias where advocates who look, sound, have similar backgrounds and experience, or appear to share similar qualities to the judge, may receive more favourable treatment;

  • attribution bias occurs when a person’s errors or mistakes are assumed to be a consequence of the person’s lack of skill or competence, rather than external factors. A simple example might be poorly collated submissions being assumed to be the advocate’s incompetence, rather than external factors, eg, the equipment failing when printing or collating the documents over which the advocate had no control and was unrelated to the advocate’s skill or competence;

  • confirmation bias this occurs if judges look for, or give greater weight to, an advocate’s presentation that confirms the judge’s views or preferences;

  • halo bias this occurs when a person is known, respected and liked, which may result in focusing on one particular feature of the person’s skill and ignoring the negative;

  • contrast bias this is the form of bias that gives rise to discrimination when assumptions are made based on comparison, rather than assessing individual merit.

Finally, bullying and harassment are more likely to occur if there is no sanction. Very rarely is there any immediate sanction or action that can be taken when the bullying occurs. Even after the event, what can be done?

There is an absence of any effective personal remedy for a practitioner who experiences bullying or harassment. There is a perception that there is unlikely to be any sanction for the judicial officer if a complaint is made. The difficulty of removing a judicial officer from office undoubtedly would have an effect on the extent to which a judicial officer may act outside the boundaries of traditionally accepted workplace behaviour. The risk that inappropriate workplace conduct would lead to removal from judicial office is low.115

Judicial bullying and corrosion of trust

The literature tends to focus on inappropriate conduct directed towards individuals and very little discussion is directed to the effect of judicial bullying at an institutional level.

In February 2021, at the Opening of the Law Term, the Honourable Chief Justice Tom Bathurst AC spoke about the importance of trust in the judiciary.116 He said the public was regularly and deeply questioning the trust they place in institutions, and “rightly so”.117 He acknowledged that public trust in institutions was fragile, and institutions could no longer simply assume the public will place their trust in them. The Chief Justice said:118

The judiciary must take this decline in public trust seriously. Whilst the Australian judiciary has historically enjoyed high levels of trust, we cannot afford to be complacent. We cannot assume that trust is ever-present and uniform across the community we serve. The legitimacy of the judiciary and, in turn, the courts relies upon a certain level of trust in the competency, motivations and values of its judges. The judiciary, like all institutions, must continue to build and strengthen trust by all groups in our society.

The Chief Justice acknowledged the effect on victims of bullying, noting victims stay silent; leave the law because of sexual harassment and bullying; leave the law because of bias and discrimination that result in unequal opportunities; and are disempowered, excluded and silenced from their rightful place in the law.119

Sir Geoffrey Vos spoke to similar themes in his 2023 lecture. He said:120

The problem is, I think, exacerbated by the fact that those who reach the peak of the professions and the judiciary are, even if they are themselves diverse, sometimes unwilling to challenge the structure and governance of the institutions themselves. Some don’t want to accept that the system within which they may have spent 30, 40 or more years is itself in need of attention.

The whole purpose of the justice system is to be fair and just. Lawyers and judges, and preeminently senior lawyers and judges assume that they are fair and just and, more importantly that the system that has created them is fair and just too.

In some ways they are right, but in others they are not. It takes intellectual courage to challenge the institution that has put you in your place. I believe that our senior lawyers and judges need the courage to challenge the over-centralisation of power. They need to consider the maintenance and introduction of checks and balances intra-institutionally not just inter-institutionally.

Addressing these issues requires us to acknowledge the court as a workplace, the court must reflect contemporary practices of workplace behaviour and strive to make the workplace psychologically safe. This includes feeling safe to raise concerns or complaints about unfair and inappropriate judicial behaviour without the fear of victimisation. The next step to maintaining trust in our institutions is accountability and transparency when a judge’s behaviour crosses the line. The developments in the United Kingdom and the public statements following investigations is an example of a transparent approach.121

Turning to practical matters — handling and responding to judicial bullying

A barrister is unlikely to make a complaint about bullying to anyone, but even less likely to make a complaint to the Judicial Commission of NSW or the relevant head of jurisdiction. Such an avenue is likely to be the “last resort option” where everything else has failed and generally if the impact of the bullying has disadvantaged clients or a trial process. Consequently, barristers may put up with behaviours that would in any other environment or interaction be unacceptable.

It is important to know what information is available and what is involved in a complaints process.

The NSW Bar Association has some information on its website:

There are also some helpful articles in Bar News about these policies and issues.123

A barrister may raise a concern with the Bar Association. The Association and the courts have protocols for raising matters of concern between the President of the Bar Association and the relevant head of jurisdiction.

However there is very little guidance about what a barrister should or could do in the moment when experiencing bullying or taking a concern further to make a complaint.

I recommend the England and Wales Bar Council’s Bar Council guides: advice to the Bar about bullying by judges.124 The guide is practical and provides suggestions on what to do if you or a fellow practitioner experiences judicial bullying.

Taking the guide’s suggestions into account and drawing on general advice to address bullying in the workplace, the following sets out some steps a barrister may take if they feel at risk of being bullied by a judge with a reputation for his/her treatment of counsel or those occasions when a barrister feels bullied. The following is not intended to be exhaustive!

Be prepared

If you know the judicial officer is a bully and the nature of the bullying, be prepared to navigate, deflect and manage. Before appearing before the particular judge, consider what strategic approach to take and prepare your clients for what to expect. While not condoning or seeking to excuse the conduct, the client or witness should know what might occur before it occurs. Consider whether the judge may have an unconscious bias. If you are aware of how those unconscious biases may affect you, a client, witnesses or the particular case, you can engage and present your case in a way that taps into the judge’s unconscious bias.

Recordings and transcript

The public nature of the courtroom should be used to an advocate’s advantage when bullying occurs or the judge’s behaviour crosses the line. As discussed above, the record of the proceeding in Adacot and Sowle125 was examined by the appellate court. The transcript, a sound or video recording provides an opportunity to ensure the advocate’s concerns and the evidence of inappropriate judicial conduct is recorded during the hearing.

Personal response in the moment and de-escalation

Be aware of your presentation.126 Be aware of how to use your breath, stance, tone and cadence of your voice. Bullying can trigger the “flight or fright” response and you need to be aware of applying de-escalation techniques in that moment. These may include:

  • slowing down the pace of delivery and breathe

  • taking a step back from the lectern but particularly being aware of not leaning in or forward into the conflict

  • change eye contact or stop looking directly at the judge — a strategic glance to the ceiling, window or the wall clock (if there is one)

  • “drink and think” to use a moment to collect one’s thoughts

  • silence and an extended pause can be very effective tools to de-escalate inappropriate behaviour. An uncomfortable silence may be used for effect, and

  • if necessary, ask for a break or short adjournment.

Bystander and interventions

As Lieutenant-General David Morrison, the then Chief of the Army, said in 2013 when addressing bullying and harassment in the Australian Defence Force, “the standard you walk past is the standard you accept”.127

What should you do when you witness another advocate or your opponent being bullied? Consider your role as a bystander. Don’t assume that the bullying of your opponent will not be visited upon you. Do not participate or encourage the judge’s conduct towards your opponent.

Consider how you might assist or intervene to diffuse a situation or support the other advocate. It may be in your interests to do so to avoid the risk of the trial being de-railed or an appeal.

After the event

After the appearance, ensure you make a note and keep a record of what occurred.

In Australia, as far as I am aware, we do not have the equivalent to the US website, The Robing Room,128 a site that claims to provide a forum for evaluating United States federal district court judges and magistrate judges.

Self-care

Be aware of your personal reaction and the effect bullying may have on you. Get assistance as frequently as you consider you need it. Friends and family may not have the skills to assist in a way that you need. BarCare is an important resource. BarCare is a confidential counselling service for barristers and their immediate families. Up to six consultations are provided free of charge. Clerks and colleagues in chambers can make a confidential referral to BarCare. It is funded by the Barristers’ Benevolent Association of NSW and does not give any personal information to the Bar Association without the express permission of the barrister involved.

Immediate assistance is available via Lifeline — 131 114; 1800Respect — 1800 737 732; MensLine Australia — 1300 789 97; and BeyondBlue — 1300 224 636.

Other assistance

Seek out and use assistance from colleagues, employers, support services. If you are employed, then raise the matter with relevant managers — ask them to address the issues and follow up. Schedule time to follow up, de-brief and consider whether there are implications for the conduct of the case or the need for an appeal. There are a range of best practice guidelines for the legal profession including the TJMF psychological wellbeing: best practice guidelines for the legal profession.129

Consider options for raising concerns or making a complaint

Consider when, how and why you might want to escalate any concerns about the judge’s conduct or whether to make a complaint.

Making a complaint about a judicial officer

There are differences of opinion within the judiciary as to how judicial misconduct should be managed.

In a survey of 142 judicial officers (nationally), judicial officers were asked to indicate the extent to which they agreed that adequacy of disciplining and removal procedures was a challenge in their jurisdiction:130

  • 44% of respondents were neutral, 34% agreed or strongly agreed and 22% disagreed or strongly disagreed. Twenty-nine percent (29%) of male respondents strongly disagreed or disagreed, while only 11% of female respondents disagreed or strongly disagreed;131

  • women respondents were more likely to indicate that disciplinary and removal procedures were a challenge, while only 24% of male respondents agreed or strongly agreed;132

  • as to whether complaints handling procedures were sufficient, 47% of respondents agreed, 24% were neutral and 28% either disagreed or strongly disagreed.133

Judicial Commission of NSW

In NSW, any person may make a complaint to the Judicial Commission about a matter concerning the ability or behaviour of a “judicial officer” within the definition of s 15(1) Judicial Officers Act 1986 (NSW).

The complaint must be in writing, identify the complainant and identify the judicial officer concerned. The particulars of the complaint must be verified by statutory declaration: Judicial Officers Regulation 2022 (NSW) reg 4.134 For more information see:

The judicial officer named will be advised of the fact that a complaint has been made and be provided with a copy of the complaint documentation. The Judicial Commission can seek a response from the judicial officer.

The Judicial Commission will conduct a preliminary examination, including inquiries into the subject matter of the complaint as it thinks appropriate: see s 18(2) Judicial Officers Act 1986 (NSW).

Following its preliminary examination, the Judicial Commission must then take one of the following actions:

  • summarily dismiss the complaint, or

  • refer the complaint to the relevant head of jurisdiction, or

  • refer the complaint to the Conduct Division.

Section 20(1) Judicial Officers Act requires that, whether or not the complaint is substantiated, it must be summarily dismissed if:

  • the complaint is one that the Commission is required not to deal with

  • the complaint is frivolous, vexatious or not in good faith

  • the subject matter of the complaint is trivial

  • the matter complained about occurred at too remote a time to justify further consideration

  • there was a satisfactory means of redress or of dealing with the complaint or the subject matter

  • the complaint relates to the exercise of a function subject to adequate appeal or review rights

  • the person complained about is no longer a judicial officer, and

  • in all the circumstances, further consideration of the complaint would be unnecessary or unjustifiable.

If not dismissed, the Commission may refer a complaint to the relevant head of jurisdiction, along with all supporting material, and recommend either counselling or disciplinary action: see s 21(2) Judicial Officers Act.

Alternatively, if justified, a complaint may be referred to the Conduct Division, a non-standing body convened on an as-needs basis. The Conduct Division may ultimately report to Parliament that a complaint may justify removal of the judicial officer, and Parliament will vote on whether this should occur. To date, this has not occurred. If the Conduct Division does not believe a substantiated complaint would justify removal from office, it will set out its conclusions in a report that may include recommendations on how to deal with the complaint: see s 21(1) Judicial Officers Act.136

If the Judicial Commission considers a matter concerns corrupt conduct, then those allegations are required to be referred by the Judicial Commission to the Independent Commission Against Corruption (ICAC).137

ICAC has concurrent jurisdiction with the Judicial Commission to investigate complaints of criminal misconduct by any public official, including judges.138 ICAC has no enforcement powers against judges but it may refer its findings to the Judicial Commission or to NSW Parliament.139

Federal courts and complaint pathways

In 2007, a Senate Committee recommended that the Australian Government establish a federal judicial commission modelled on the Judicial Commission of NSW.140 In early 2023, the Australian Government announced they were “considering the merits and design of a federal judicial commission that could independently examine and deal with complaints made to it about federal judges”.141

In 2019, the Federal Court, Family Court and Federal Circuit Court together with the Presidents of the State and Territory Bar Associations agreed to a protocol for an alternative and less formal mechanism of reporting judicial conduct, which allows members of the Bar to raise concerns about judicial conduct with any President of any Bar Association who may then raise that concern directly with the relevant Chief Justice.142

There is no federal equivalent through which complaints about judicial misconduct can be made. The federal complaints process involves making complaints directly in writing to the relevant Chief Justice of each jurisdiction.

The Courts Legislation Amendment (Judicial Complaints) Act 2012 amended the Family Law Act 1975 (Cth), the Federal Court of Australia Act 1976 (Cth) and the Federal Magistrates Act 1999143 (Cth) (repealed) and inserted a complaints handling procedure. The amendment provided that a person had a “relevant belief” in relation to a complaint about a judge if they believed that the circumstances giving rise to a complaint could, if substantiated:

(a) 

justify consideration of the removal of the judge

(b) 

adversely affect the performance of judicial or official duties of the judge, or

(c) 

have the capacity to adversely affect the reputation of the court.

In the Federal Court, a complaint about judicial conduct must be made by letter addressed to the Chief Justice pursuant to the Judicial complaints procedure.144 It must identify the complainant, the judge about whom the complaint is made and the judicial conduct about which the complaint is made. Judicial conduct, for the purposes of this procedure, means conduct of a judge in court or in connection with a case in the Federal Court, or in connection with the performance of a judge’s judicial functions. The Federal Court explains:145

The complaints procedure does not, and cannot, provide a mechanism for disciplining a judge. It does, however, offer a process by which complaints by a member of the public about judicial conduct can be brought to the attention of the Chief Justice and the judge concerned, and it provides an opportunity for a complaint to be dealt with in an appropriate manner.

...

For constitutional reasons, the participation of a judge in responding to a complaint is entirely voluntary. Nevertheless, it is accepted that a procedure for complaints can provide valuable feedback to the court and to its judges. It can also provide the court with opportunities to explain the nature of its work, correct misunderstandings where they have occurred and, if it should fall short of judicial standards, to improve the performance of the court.

The Federal Court’s Annual Report 2021–2022 revealed the court had established a judicial workplace conduct committee, chaired by Markovic J. The committee “will develop education programs specific for judges as well as a dedicated portal on judicial workplace conduct”.146 The scope of the education programs, and the role of the workplace conduct committee is not clear. It is not clear whether it relates to the conduct of judges within the workplace, in relation to their own, court and registry staff, or whether it extends more broadly into interactions with legal practitioners in court.

The Annual Report 2022–2023147 indicates this committee still exists, but provides no further information.

The Federal Circuit and Family Court of Australia’s complaints procedure for practitioners is broadly similar to the Federal Court process.148

Upon receiving a complaint, the Chief Justice may summarily dismiss it, deal with the complaint privately with the judge concerned, establish a Conduct Committee, or refer the complaint to the Attorney-General.149

A Conduct Committee will undertake an investigation and report to the Chief Justice. It may conclude the matter should be dismissed, or that the complaint could justify parliamentary consideration of removal from office, or that the conduct at least should be noted as having “affected the performance of the judge’s duties” or “adversely affects the reputation of the judiciary”. It will then be a matter for the Chief Justice whether to act on the Committee’s advice.150

Concluding comments

As the legal profession continues to expand and becomes more diverse, there are opportunities to draw on the best of the traditions of the profession but also evolve to walk from practices and rituals that no longer serve a modern legal system capable to endangering the trust and confidence of the community and safeguard the rule of law.


1Presented at the NSW Bar Association CPD series over February and March 2024. Originally presented at the Legal Aid Criminal Law Conference, 4 August 2023. Previously published in (2024) 1(3) JQR 94.

2Barrister, New Chambers.

3T F Bathurst, “Trust in the judiciary”, Opening of Law Term Address, 3/2/2021, accessed 12/6/2025.

4See for example Charisteas v Charisteas (2021) 273 CLR 289 at [11]–[23] on the protocols around communications between a judge and counsel during a trial or when judgment is reserved.

5S Le Mire and R Owens “A propitious moment? Workplace bullying and regulation of the legal profession” (2014) 37(3) UNSW Law Journal 1030, p 1031.

6S Lubet, “Bullying from the bench” (2001) 5 Green bag 2D 11, p 12, cited in A Smith, “Judges as bullies” (2018) 46(1) Hofstra Law Review 253, p 254, fn 6; see also G Cash, “Judicial bullying: the last of the legal bloodsports?”, presented to the Sunshine Coast Bar Association Conference, Alex Surf Club, 7/10/2023, p 12, accessed 20/2/2024. Cash draws parallels between the hierarchical and obeisant nature of the military and the courtroom, noting the high rates of bullying in the military.

7A Edmondson, “Psychological safety and learning behavior in work teams” (1999) 44(2) Administrative Science Quarterly 350, p 354.

8A Gallo, “What is psychological safety?”, Harvard Business Review, 15/2/2023, accessed 20/2/2024.

9J Allsop, The culture of the legal profession: lessons of the past and hope for the future, Queensland Law Society Symposium, 11/3/2021, p 5, accessed 1/2/2024.

10G Cash, above n 6.

11J Allsop, above n 9; see also R Robson and J Wilson, “Judges on ethics: judicial conduct in the new millennium”, Twilight Lecture, Deakin University Law School, August 2022, accessed 1/2/2024; N Neilson, “Judicial Q&A: what judges want from young barristers in the courtroom”, Lawyers Weekly, 2/11/2020, accessed 1/2/2024; M Kirby, “Judicial stress and judicial bullying” (2014) 14(1) QUT Law Review 1, p 11, accessed 1/2/2024.

12See also the comments of Julann Tiernan on the “code of silence” that “exists out of fear” regarding bullying behaviour in the profession: L Croft, “Bullying still way too commonplace in Australia’s legal profession”, Lawyers Weekly, 13/12/2023, accessed 20/2/2024.

13V Rose, “What makes a good judge?”, The Barnard’s Inn Reading, 16/6/2022, accessed 1/2/2024.

14ibid p 6.

15ibid.

16A comment made by Magistrate Jessica Kerr reported by A Bradley, “Judges, bullying and a broken complaints system”, Radio New Zealand, 23/9/2021.

17M Kirby, above n 11, pp 10–11.

18International Bar Association, “Us too? Bullying and sexual harassment in the legal profession”, 2019, accessed 20/2/2024; G Croft, above n 12; K Mason, “The court as a workplace: notes for starting a conversation within the County Court”, presented at the County Court of Victoria Conference, 22/3/2016; V Bell, “Keynote address”, presented at the Tristan Jepson Memorial Foundation Lecture, 23/10/2014, accessed 20/2/2024.

19See description of “bullying” in Momirovski [2023] FWC 3299 at [86]; Mac v Bank of Queensland Ltd [2015] FWC 774 at [99].

20Blagojevic v AGL Macquarie Pty Ltd [2018] FWCFB 4174, at [17]: “a one-off incident will not be a sufficient basis … Provided there is more than one occurrence, there is no specific number of incidents required to meet the condition of ‘repeated’ behaviour, nor does the same specific behaviour have to be repeated”.

21Fair Work Act 2009 (Cth) s 789FD. See also the Fair Work Commission, Orders to stop bullying benchbook, updated June 2023, accessed 24/1/2024.

22Blagojevic v AGL Macquarie Pty Ltd, above n 20, at [15]; Application by GC [2014] FWC 6988 (GC), at [47].

23See Fair Work Commission, “About reasonable management action”, accessed 24/1/2024.

24K Nomchong, “Judicial bullying: the view from the bar” (2018) 30(10) JOB 95.

25See the 2022 amendment to the Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW).

26Legal Professional Uniform Conduct (Barristers) Rules 2015 (NSW) r 123(2).

27SafeWork Australia has published a range of guidelines and model policies to address workplace bullying, see for example Bullying, accessed 1/2/2024.

28Work Health and Safety Act 2011 (NSW), s 19(2).

29Safe Work Australia, “Psychosocial hazards”, accessed 20/2/2024.

30K Nomchong, above n 24.

31For NSW, see also Anti-Discrimination Act 1977 (NSW) ss 22A, 22B, 24, 25, 50.

32Section 28AA of the SD Act.

33Section 28A of the SD Act.

34Section 28M(2) of the SD Act.

35Australian Human Rights Commission, Respect@Work: sexual harassment national inquiry, Final Report, 5/3/2020, accessed 21/2/2024.

36See also C Knaus, “Dyson Heydon: High Court invites 100 former associates to tell of their experiences”, The Guardian, 25/6/2020, accessed 21/2/2024.

37S Kiefel, “Statement by Chief Justice of the High Court of Australia”, 22/6/2020, accessed 21/2/2024.

38C Knaus, “Former High Court Justice Dyson Heydon sexually harassed staff, inquiry finds”, The Guardian, 22/6/2020, accessed 21/2/2024.

39A Davies and N Zhou, “Dyson Heydon: Australian courts review how they handle sexual harassment in wake of case”, The Guardian, 24/6/2020, accessed 21/2/2024.

40High Court of Australia, Justices’ policy on workplace conduct, March 2022, accessed 21/2/2024.

41See Supreme Court of Victoria, “Respect and sexual harassment”, accessed 21/2/2024; Court Services of Victoria, “Preventing sexual harassment in Victorian courts and tribunals”, accessed 21/2/2024.

42See Equal Opportunity Commission, Report of the review of harassment in the South Australian legal profession, 9/4/2021, accessed 21/2/2024; see also the current further review, 2024 review of harassment in the legal profession (SA), accessed 21/2/2024.

43Sexual Harassment Claims, “District Court Judge resigns over sexual harassment allegations”, 25/5/2023, accessed 21/2/2024; C Campbell, “Adelaide magistrate accused of sexual harassment loses attempt to have investigation quashed”, ABC News, 16/5/2022, accessed 21/2/2024; N Neilson, “Victorian Supreme Court judge sexually harassed two associates”, Lawyers Weekly, 17/2/2022, accessed 21/2/2024; J Maley, “Federal Circuit Court judge found to have harassed two young women”, Sydney Morning Herald, 8/7/2021, accessed 21/2/2024.

44Supreme Court of NSW, Supreme Court policy on inappropriate workplace conduct, October 2021, accessed 21/2/2024; District Court of NSW, Workplace conduct policy, 8/10/2020, accessed 21/2/2024; Land and Environment Court of NSW, Commissioners’ code of conduct, 18/1/2010, accessed 21/2/2024. The NSW Civil and Administrative Tribunal (NCAT) is not a court; its members (with the exception of the President and the judicial officers serving as deputy presidents) are not judicial officers. However, the NCAT member code of conduct addresses the conduct of members towards litigants and practitioners. The NCAT member code of conduct requires its members to conduct themselves appropriately: see [16] and [17] of the NSW Civil and Administrative Tribunal, NCAT member code of conduct, 9/7/2020; NSW Civil and Administrative Tribunal, NCAT member terms and conditions handbook, Version 2.6, 23/11/2021, accessed 21/2/2024.

45See also s 4(1) of the definitions of “Commonwealth employee”, “Commonwealth judicial office”, “State employee” and “State judicial office”. See also s 109 of the SD Act — the State is deemed the “employer”.

46Law Council of Australia, National model framework addressing sexual harassment for the Australian legal profession, December 2021, accessed 21/2/2024.

47Australian Bar Association, Best practice guide to barristers and meeting the positive duty, accessed 21/2/2024.

48Judicial Officers Act 1986 (NSW), s 3(1).

49See also A Rooding et al, “Court Services Victoria receives significant fine for psychological safety breach”, King & Wood Mallesons Insights, 31/10/2023, accessed 21/2/2024.

51Compare the consequences for a legal practitioner who engaged in inappropriate conduct directed to a court security officer: Kanapathy v in de Braekt (No 4) [2013] FCCA 1368. The legal practitioner was struck off the roll for reasons including offensive and discourteous conduct in court and in correspondence towards a magistrate, police and security officer: Legal Profession Complaints Committee v in de Braekt [2013] WASC 124.

52J Basten, “Should judges have performance standards?” (1995) Bar News 9. This paper was first delivered to the 1995 NSW Legal Convention. See also J Spigelman “Dealing with judicial misconduct”, 5th World Wide Common Law Judiciary Conference, Sydney, Australia, 8/4/2003, accessed 21/2/2024; and see Law Reform Commission of WA, Complaints against judiciary, August 2013, accessed 21/2/2024.

53J Allsop, above n 9, p 7.

54E Schindeler, “The problematic of judicial accountability” (2021) 1(2) Legalities 210 at 214, accessed 1/2/2024.

55The impact of inappropriate judicial conduct is not confined to Australia. In July 2023, Professor Margaret Satterthwaite, the United Nations Special Rapporteur on the independence of judges and lawyers presented her report on Reimagining justice: confronting contemporary challenges to the independence of judges and lawyers, 13/4/2023, published 10/7/2023, accessed 1/2/2024; see the United Nations Office on Drugs and Crime, Bangalore principles of judicial conduct, 2018, accessed 1/2/2024.

56[2001] NSWCA 407 at [159]ff.

57[1991] NSWCA 267.

58[1991] NSWCA 267at [10].

59R v T, WA (2014) 118 SASR 382; Eliezer v Sydney Water Corporation [2021] NSWDC 66 (on appeal Eliezer v Sydney Water Corporation [2021] NSWCA 300.

60Ozmen v Culture Map Pty Ltd (No 1) [2020] FCA 1890; R v T, WA, above; Tanamerah Estates Pty Ltd v Tibra Capital Pty Ltd [2016] NSWCA 23; Dennis v Commonwealth Bank of Australia [2019] FCAFC 231, at [35]–[36].

61Galea v Galea (1990) 19 NSWLR 263; Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; Ellis v R [2015] NSWCCA 262; AB v Magistrates’ Court of Victoria at Heidelberg [2011] VSC 61, at [93], Reznitsky v DPP (NSW) [2014] NSWCA 79, at [38].

62[2020] FamCAFC 215.

63ibid at [2].

64ibid at [24]–[35].

65ibid at [36]–[67].

66ibid at [68]–[74].

67ibid at [75]–[98].

68ibid at [108]. See also Gambaro v Mobycom Mobile Pty Ltd [2019] FCAFC 144 generally and at [32], [34]; Jorgensen v Fair Work Ombudsman [2019] FCAFC 113, at [105].

69See George v Fletcher (Trustee) [2012] FCAFC 148, at [166]–[167] where the remarks in question were labelled “injudicious” but did not create an apprehension of bias. “Harsh tones”, mere discourtesy or abruptness does not give risk to a reasonable apprehension of bias: VFAB v Minister for Immigration [2003] FCA 872 at [44] and [81] per Kenny J and SZNVM v Minister for Immigration and Citizenship [2010] FCA 261 at [31] per Katzman J.

70Damjanovic v Sharpe Hume & Co [2001] NSWCA 407 at [43], [46]; Gambaro v Mobycom Mobile Pty Ltd , above n 68, at [32]; Jorgensen v Fair Work Ombudsman, above n 68, at [119], [126]; George v Fletcher (Trustee), ibid at [160]–[167].

71Finch v Finch [2020] FamCAFC 60 at [40]–[46], [65]; Cook v R [2016] VSCA 174 at [99]; Adacot and Sowle, above n 62, at [103].

72Damjanovic v Sharpe Hume & Co, above n 70, at [157]–[159]; Were v Police (SA) [2003] SASC 116 at [13]; Mills v Police (SA) [2000] SASC 362 at [23]–[33]; Sideridis v Police (SA) [2001] SASC 90 at [11]–[13]; Naisauvou v Minister for Immigration and Multicultural Affairs [1999] FCA 86 at [29]–[34].

73Adacot and Sowle, above n 62, at [24]–[35]; Magistrates’ Court of Victoria at Heidelberg v Robinson [2000] VSCA 198 at [12], [25]–[26]; Barmettler v Greer [2007] QCA 170 at [40].

74Dennis v Commonwealth Bank of Australia [2019] FCAFC 231 at [35], [37].

76The Council of Chief Justices of Australia and New Zealand by AIJA, Guide to judicial conduct, 3rd edn, AIJA, December 2022, p 8.

77Chapter 4 of the Guide to judicial conduct notes that everyone has an entitlement to be treated with dignity, that bullying by a judge is unacceptable and that many complaints to the Judicial Commission have had remarks made by judicial officers in the course of proceedings as their foundation.

78Judicial Commission of Victoria, Judicial bullying — consultation paper, July 2022, p 4 [2].

79Judicial Commission of Victoria, Judicial conduct guideline: judicial bullying, May 2023, accessed 6/2/2024.

80ibid p 5.

81ibid pp 5‒6.

82Federal Circuit and Family Court of Australia, Judicial workplace conduct policy, 1/10/2021, accessed 6/2/2024.

83ibid p 4.

84D Richmond, “Bullies on the bench” (2012) 72(2) Louisiana Law Review 325.

85Judicial Commission of NSW, Handbook for Judicial Officers, Sydney, 2021.

86ibid, at “Relationship with legal profession, bullying and sexual harassment”.

87E Schindeler, above n 54, p 215.

88Compare the approach taken in the United Kingdom — see UK Bar Council, Bullying, harassment and discrimination at the Bar, December 2023, accessed 21/2/2024; see also UK Bar Council, “Bar Council commits to address inappropriate behaviour at the Bar”, Press Release, 7/12/2023, accessed 21/2/2024.

89Law Council of Australia, NARS Report, 2014, accessed 6/2/2024.

90K Nomchong, above n 24. This is generally consistent with the results of a Victorian survey: Victorian Bar, Wellbeing of the Victorian Bar, Final Report, June 2018, accessed 21/2/2024.

91K Nomchong, above n 24.

92Australian Law Reform Commission, Without fear or favour: judicial impartiality and the law on bias, Report No 138, December 2021, at [5.178], accessed 1/2/2024.

93Judicial Commission of NSW, Annual Report 2022–2023, Sydney, 2023, (Report 2022–2023), p 43.

94ibid.

95ibid p 46.

96Compare Damjanovic v Sharpe Hume & Co [2001] NSWCA 407.

97D Heydon, “Practical impediments to the fulfilment of judicial duties”, The role of the judge, National Judicial Orientation Programme, June 2004, p 34.

98G Martin, “Bullying in the courtroom” (2013) 4(1) WR 16, quoted in G Cash, above n 6, p 7.

99G Cash, ibid.

100G Cash, above n 6, p 12.

101M Freedman, Understanding lawyers’ ethics, 1st edn, LexisNexis, 1990, p 73.

102See N Neilson, above n 11.

104Judicial Commission of NSW, above n 85.

105See M Kirby, above n 11, at 11.

106H Bowskill, “Cumulative trauma and stress as a judicial officer”, presented at Brisbane Magistrates Court, 25/3/2021, accessed 21/2/2024.

107G Vos, “The relevance of equality, diversity and inclusion for the legal sector and the Inns of Court”, presented at Ashworth Centre at Lincoln’s Inn at 6 [43], 4 [26]; recording available online.

108S Le Mire and R Owens, above n 5.

109K Mack, “Suggested criteria for judicial appointment”, Report prepared for the AIJA, January 2024, accessed 21/2/2024.

110ibid pp 9–10.

111ibid pp 12–13.

112See NJCA, “A national standard for professional development for Australian judicial officers”, accessed 21/2/2024. There were two orientation programs in 2023; and three orientation programs planned for 2024.

113ALRC, above n 92, at [12.65].

114G Cash, above n 6, p 7.

115In comparison, see n 51, above.

116T F Bathurst, above n 3.

117ibid p 2, [3].

118ibid at [4].

119ibid p 17, [52].

120G Vos, above n 107, p 5, [32]–[34].

121See Judicial Conduct Investigations Office, for example “Statement from the Judicial Conduct Investigations Office — Lord Justice Clive Lewis”, 29/9/2023, accessed 21/2/2024.

122See also Inns Court of Alliance for Women, “ICAW: tackling judicial bullying”, 21/3/2023, and ABA, “Bullying from the Bench: how to cope in court”, ABA Journal: Asked and Answered, 25/2/2019.

123Bar News: the journal of the New South Wales Bar Association, AustLii, 7/2/2024, accessed 21/2/2024.

124England and Wales Bar Council, Bar Council guides: advice to the Bar about bullying by judges, February 2019, accessed 6/2/2024.

125[2020] FamCAFC 215.

126See for example A Cuddy, “Your body language may shape who you are”, June 2012, accessed 21/2/2024.

127See D Morrison, “The standard you walk past is the standard you accept — ADF investigation — 2013”, Speakola, 13/6/2013, accessed 6/2/2024.

131ibid.

132ibid.

133ibid at 363.

134Judicial Commission of NSW, Instructions for lodging a complaint against a NSW judicial officer, accessed 6/2/2024.

135Judicial Commission of NSW, Guidelines for complaints against judicial officers, accessed 6/2/2024.

136Judicial Commission of NSW, above n 93, pp 48–50.

137Independent Commission Against Corruption Act 1988 (NSW) s 11.

138ibid ss 3(1), 8–10.

139ibid s 53.

140Senate Legal and Constitutional Affairs References Committee, Parliament of Australia, Australia’s judicial system and the role of judges, Report, 7/12/2009, p 97, accessed 6/2/2024.

141Attorney-General’s Department, Australian Government, Scoping the establishment of a federal judicial commission, Discussion Paper, January 2023, accessed 6/2/2024.

143Federal Magistrates Court was replaced by the Federal Circuit and Family Court of Australia Div 2 by Act No 13 of 2021 on 1/9/2021.

144Federal Court of Australia, Judicial complaints procedure, accessed 22/2/2024.

145ibid.

146Federal Court of Australia, Annual Report 2021–2022, 19/9/2022, p 18, accessed 6/2/2024.

147Federal Court of Australia, Annual Report 2022–2023, 19/9/2023, p 238, accessed 22/2/2024.

148Federal Circuit and Family Court of Australia, Judicial complaints procedure, 3/5/2013, accessed 6/2/2024.

149See Federal Court of Australia Act 1976 (Cth), s 15(1AAA).

150Federal Circuit and Family Court of Australia, above n 148.