Handbook for Judicial Officers — Relationship with legal profession, bullying and sexual harassment

There is no universal definition of bullying. The Fair Work Act^[13] stipulates that bullying occurs towards an individual (or group of individuals) in a workplace where there is repeated unreasonable behaviour towards the worker (or group of workers); and that behaviour creates a risk to health and safety.^[14] However, access to the anti-bullying orders are only available to employees of the same employer.

More generally, bullying encompasses a range of behaviour. For the purposes of this discussion, it includes a “threat to another’s professional status (eg belittling opinion, public professional humiliation, accusation regarding lack of effort); threat to personal standing (eg name-calling, insults, intimidation, devaluing with reference to age) … overwork (eg undue pressure, impossible deadlines, unnecessary disruptions)”.^[15] Power imbalance is an integral part of bullying because the perpetrator perceives that the victim has little or no ability to retaliate.^[16]

It is sometimes said that intemperate and/or inappropriate behaviour by the judge may be an understandable by-product of the adversarial nature of the courtroom. The pressures of managing ballooning dockets and lengthy directions lists — often with fewer resources — should not be underestimated. However, while the occasional intemperate comment or moment of obvious exasperation by the judge is likely to be inevitable, directed intimidation, sarcasm, discriminatory remarks and outbursts of temper, on the other hand, have the capacity to cause humiliation, stress and more serious psychological reactions in the barrister to whom the remarks are directed. Further, judicial bullying may also cause dysfunction in the judicial process, bring the process into disrepute and ultimately, affect public confidence in the administration of justice.

The relationship between the Bench and the Bar is one of trust, confidence, competence, integrity and honesty. It is crucial to the efficient disposal of litigation that that relationship is not undermined.

In his 2013 comments, Bathurst CJ noted that “an integral part of the adversarial process” involved judges questioning propositions advanced by counsel, correcting errors and drawing to a close misguided lines of argument. However, while being “curt” in order to achieve these objectives would not amount to bullying, it has been suggested that it might nevertheless give the impression that there had not been a fair hearing.^[17]

Justice Peter Young, former judge of the NSW Court of Appeal, expressed his view in a 2013 article in The Australian titled “Thin-skinned advocates should take a spoonful of cement and harden up”. In the article, Young J suggested that the increase in the number of alleged instances of judicial bullying could be attributed to the “growth of ‘self-esteem’ as a virtue … so that any adverse statement which has a tendency to deflate self-esteem even slightly is taken as unfair bullying”.^[18]

In a similar vein, judges (and more senior barristers) often respond to the topic of judicial bullying by asserting that many alleged instances arise where incompetent advocates seek to justify their position when their lack of preparation or misconceived arguments are the subject of adverse comment by the Bench. In that regard, there is no doubt that the Bar must accept responsibility for the ongoing role of education and disciplinary control over its members, particularly for those whose lack of diligence add to the pressures of hearings. However, it is essential that the reaction of judges, even to poor advocates, remains civil and professional.

Most instances of judicial bullying are unlikely to be characterised as intentional public ridicule or harassment. However, there are examples. In 2013, Justice Glenn Martin, former President of both the Queensland and Australian Bar Association, recounted a complaint from a junior barrister who had been told by a judge in open court: “You’re an idiot. Does your client know you’re an idiot?”.^[19]

Although comments like these make it to the airwaves, the spectrum of behaviour considered to be unacceptable is not and should not be limited to explicit verbal abuse.

Justice Michael Kirby was one of the first judges to speak publicly on the issue of judicial bullying. His Honour believed that this included conduct such as “displaying personal animosity, disrespect towards advocates or litigants or their arguments, courtroom rudeness, arrogance towards advocates or colleagues, gossiping and laughing in private conversations with other judges during argument”.^[20] This sort of conduct is clearly designed to, and has the effect of, alienating the advocate and the litigant. Such conduct creates an unfavourable impression of the judge and the court process.

It is also worth noting Kirby J consistently articulated the view that a civil and courteous court was more likely to be an efficient one.

In January 2018, the NSW Bar Association conducted a 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.

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.^[21] 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 QoWL survey replicated the anecdotal information that has been voiced by barristers during seminars, discussions and through informal complaints. More often than not, the narrative of unacceptable bullying relates to the same judges, all known by name and notorious for their inappropriate and unwarranted behaviour. In many cases, these well-known judicial offenders have gone unchecked for years with barristers each lamenting their similar experiences. All such stories involve a recitation of how demoralising and stressful the litigation became.

While, at first sight, the QoWL survey findings are concerning, it is possible that some of the complaints, if properly investigated, would not amount to bullying. Any conclusion depends on what behaviour is said to “cross the line” — an issue which is currently unclear and has received scant attention to date. There are few existing guidelines as to what conduct constitutes judicial bullying so as to enable judges and counsel to understand what is and is not appropriate, and to identify when judicial misconduct has occurred. There has also been little in the way of collection of the empirical data needed for the development of such guidelines.

It may well be impossible to ring-fence what constitutes judicial bullying. Many instances of potential misbehaviour will fall into a grey zone, where minds will differ. However, the absence of a bright-line test for determining whether conduct from the Bench amounts to bullying does not mean that the issue should be ignored. The opposite is true. There is clearly every reason for the Bench and Bar to engage in an open and frank dialogue about judicial bullying and to address it in a systematic way.

Judicial bullying necessarily compromises the integrity and the efficiency of the court.

While it is properly the role of the judge to question counsel, aggressive or pejorative comments or interjections from a judge do not assist on this front. Justice Kirby observed that far from prompting an advocate to do better, “a speaker will rarely give his or her best for the client, or the cause, or for the court, when subjected to undue pressure”.^[22] This has certainly been reflected in the sentiments expressed in the 2018 QoWL survey and anecdotally. Repeated sarcastic or intimidatory remarks often result in advocates becoming intimidated and retreating from the process.

Justice Young, although somewhat dismissive of the “problem” of judicial bullying, similarly conceded that “most judges understand that they are more likely to gain assistance from counsel if relations between the Bench and the Bar are kept cordial than if counsel is unsettled”.^[23] Bullying behaviour can disrupt and disturb barristers which in turn prevents them from performing their task to the standard they might otherwise be capable of.

In order to avoid further hostile attention, an advocate may be coerced into making potentially disadvantageous or unnecessary concessions. The fear of being subjected to further humiliation from the Bench also deters advocates from advancing their arguments.

For judges, judicial bullying can also demonstrate or give rise to perceptions of pre-judgment. “Arrogant, rude and inappropriate” behaviour from the Bench can also impact a litigant’s opportunity to effectively present their case.^[24] Judicial bias of that kind may in turn compromise public confidence in the legal system.

First and foremost, judicial bullying cannot be dismissed as an inevitable feature of courtroom life.

The idea that judicial bullying is a necessary “rite of passage” for junior counsel is outdated, dangerous and wholly unacceptable. 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.

Younger lawyers have been educated in a school and university system that has taken bullying seriously for a generation; they are unlikely to be attracted to a profession that does not similarly address it but in some ways continues to celebrate it.

The psychological and adverse reputational damage of being a victim of judicial bullying is significant. The suicide of a young WA Legal Aid solicitor in 2010, regrettably linked to a magistrate recently “berating” her,^[25] was an unacceptable cost of a culture which tolerates judicial bullying. Beyond that very serious case, judicial bullying causes psychological stress and may contribute to the development of psychological disorders such as depression and anxiety.^[26] The very fact that 66% of barristers in the NSW QoWL survey stated, in the context of a questionnaire about their wellbeing, that they had been subject to judicial bullying may indicate that causative link. For those who do not suffer psychological injury, judicial bullying has other less visible effects on the profession at large, including emotional exhaustion as well as high levels of burn-out and withdrawal from work — all of which have a corrosive effect on the operation of our judicial system. Christopher Shanahan SC, in a discussion on effective advocacy and judicial bullying, noted the following:^[27]

Judicial bullying and its effect on legal practitioners should feature as part of the wider conversation around mental health and wellbeing in the profession.

Victims of judicial bullying are often reluctant to speak out for fear of retaliation from the Bench which could in turn jeopardise their reputation and future livelihood. It is not surprising that the most detailed publicly available accounts of judicial bullying involve judges from a former era. However, judicial bullying remains a pressing issue today and demands a thoughtful, comprehensive response.

The discussion of judicial bullying however must extend to others. Court staff who are required to bear witness to the humiliation of barristers and advocates would no doubt experience embarrassment, if not shame, at having to be a participant in a process where that sort of conduct occurs.

There is also the effect on the judge him or herself. There will be judges who lack the appropriate civil judicial temperament or sufficient self-awareness of the effect of their conduct. It is even possible that these judges boast about how clever they are because they have had to “correct” barristers appearing in their courtroom. More likely, any judge with empathy or conscience would find that bullying results in their own feelings of shame and distress. They may ruminate on how they ought not to have engaged in the bullying behaviour. They may want to blame others but they know that they should not have reacted in the way in which they did. The factors which may play a part in causing that behaviour include vicarious trauma from dealing with a litany of distressing cases, the pressure of being the person who determines an outcome which will always be adverse to the losing side, their own work schedules and their own personal circumstances.

Unlike most workplaces in Australia, the courtroom is not one where the anti-bullying provisions of the Fair Work Act apply for barristers. Although the ethical principles which underpin the federal anti-bullying legislation apply equally in the courtroom, the relevant provisions of the Fair Work Act only apply to “workers” in the “workplace” as statutorily defined.^[28] This does not include barristers and solicitors who are bullied in court.^[29] In contrast, employees who have been bullied have an opportunity to seek redress in the Fair Work Commission because the legislation imposes a positive obligation on employers to ensure that workers do not experience bullying or harassment in the workplace.

However, courts are a workplace for court staff and judicial bullying (particularly ongoing behaviour) may result in a risk to the mental health and safety of those employees. In that circumstance, there 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 2011 (NSW) (“WHS Act”). If so, court staff are workers pursuant to s 7 of the WHS Act, and courts are a workplace under s 8 of the WHS 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 WHS 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.

Notwithstanding any statutory obligation, court staff, solicitors and barristers are equally entitled to a workplace which is free of bullying.

The effectiveness of any measures aimed at reducing instances of judicial bullying will depend on the development of a shared understanding of what constitutes judicial bullying, why it occurs, and an agreement from the Bench to address it.

The development of a transparent set of guidelines will require a thorough investigation into the nature and extent of judicial bullying, including as to its causes. It will survey a wide cross-section of both the Bench and the Bar in order to understand where views converge and diverge (and why). In addition, because judicial officers rarely observe each other, courtroom observation by objective observers would also be beneficial. This would allow for the development of guidelines built around concrete examples of the types of conduct which are and are not acceptable and ensure that these guidelines reflect a shared understanding of conduct considered to be inappropriate. Although there may currently be a gap between the views of the Bench and the Bar (or, equally, the views of older and younger barristers), as to what does and does not constitute bullying, the existence of guidelines would contribute to a convergence of understanding.

A protocol or set of guidelines would also serve as a useful educational tool in orientation and legal development programs for newly appointed judges and also for barristers. Such a protocol would help reshape expectations of what is considered appropriate courtroom behaviour. In time, such guidelines may be able to form the basis of a Code of Conduct.

The procedure for making complaints also needs attention. At present, there is no standardised process for making complaints about judicial bullying. Complaints may be made to the Judicial Commission of NSW, the President of the Bar Association or to the Heads of Jurisdiction. It would be beneficial if there was a clear complaints procedure. Further, once a complaint is conveyed, there is usually very little transparency in the process. The complaint-making procedure needs to be formalised and regulated through established and transparent protocols for the receipt and processing of complaints. The existence and knowledge of these procedures would remind all courtroom participants to be conscious of the need for civil behaviour.

Due to the inherent reluctance in making complaints, attention needs to be given to how judicial bullying may be investigated without identifying any particular complainant. Moreover, there is room to consider a system of intervention that does not result in a formal disciplinary investigation, particularly given the fact that the causative basis for judicial bullying may involve health or personal issues affecting the judicial officer him/herself.

Bar Associations and Law Societies should also ensure that solicitors and barristers are in a position to respond appropriately to judicial bullying. As suggested by Kirby J, on occasions where there is flagrant misconduct, lawyers should act to ensure that there is a verifiable record of the misconduct by confirming that the words and actions appear on the transcript.^[30] There is also a role for practitioners, particularly senior practitioners, who may be present in court when judges act inappropriately to intervene by perhaps seeking to speak to the judge in chambers during a break, or in serious instances, to intervene in the courtroom. Organisations representing the interests of lawyers should also ensure that there are networks in place to assist and support those who have suffered judicial bullying.

Correspondingly, there needs to be a more comprehensive understanding of the pressures facing judges. While there has been a reluctance to acknowledge the problem of judicial bullying, equally problematic is the reluctance to discuss the stresses of judicial life arising from (amongst other factors), the loneliness of the role, the strain of constant non-delegable decision-making, the potential exposure to criticism from the media and the increasing demand on finite judicial resources often resulting in heavy caseloads.^[31] Despite the emergence of counselling services and wellbeing programs, the suicide of Melbourne magistrate Stephen Myall in 2018 demonstrates that a crippling caseload is still an issue of critical importance.^[32] Similarly, the mental health issues consequent upon a long-running hearing into child sexual abuse was made clear by Magistrate Heilpern in his address at the 2017 Tristan Jepson Memorial Foundation Lecture.^[33] While judicial stress does not justify bullying behaviour, it is a contributing factor and one which must be addressed in a thoughtful way. Our judicial system relies on both judges and advocates in order to operate efficiently and fairly. Judges are equally entitled to a workplace free from the overwhelming pressure caused by unmanageable caseloads and inadequate resources.

As indicated by the results of the NSW and Victorian Bar Assocation’s QoWL surveys, there is an urgent need to establish standards for judicial conduct and to publicise and streamline the processes by which complaints of judicial bullying can be made and investigated, or circumstances where intervention may be warranted.