Underwood, P --- "Educating Judges What Do We Need?" [2006] LegEdDig 25; (2006) 14(4) Legal Education Digest 10

Educating Judges — What Do We Need?

The Hon Chief Justice Underwood AO

[2006] LegEdDig 25; (2006) 14(4) Legal Education Digest 10

7 Jud Rev 4, 2006, pp 423–429

When the author started out, case management was an expression not to be mentioned by the junior judge for it was clear that he had no proper comprehension of the role of a judge and the independence of the judiciary. In those days the collective wisdom was that judges had no role to play in the pre-trial management of a case, for to do so would mean that he (and there were no shes in those days) was stepping between a litigant and his or her solicitor and that was totally inconsistent with the duties of judicial office. As for education for judges, the very thought of it put at peril not only the independence of the judiciary but also the very rule of law itself. Indeed, any attempt to educate a judge would surely cause the sky to fall in. In those days it was understood that the most important prerequisite for taking up judicial appointment was previous practical experience as a barrister in the courts.

So what about education for the judges over the last 20 years? Has all that changed too? Some say that it has all changed in that time and that education for judges is no longer seen as a threat to judicial independence.

A large number of newly appointed judicial officers have attended the annual Judicial Orientation Program and found it very beneficial. But apart from that, what is judicial education in Australia today? There are a number of conferences, seminars and workshops conducted around the country and attended by judicial officers. Mostly, these conferences consist of a judicial officer or an academic delivering a paper to an audience, followed by one or two short commentaries on the paper, and, if there is time, there will be a few questions from the audience. If a short examination was conducted at the end of each day of these conferences, the retention of information by the attendees would be abysmally low.

So what do we need to educate the judges? No real progress will be made in the field of judicial education until there is a massive cultural change right across the judiciary, a change that will see widespread genuine acceptance by judicial officers of a need to embrace learning well beyond an initial judicial orientation program.

There are two aspects to judicial learning. One is directed to an improvement of the skills required to discharge the duties of the judicial office. The other is directed, or should be directed, towards improvement of judicial awareness of changes in society and the expectations that society has of the judiciary. This need to learn about changes in society and society’s expectations of judges, as well as about how to be a better judge, was recognised a decade ago in the United Kingdom by the Judicial Studies Board.

What is involved in this badly needed cultural shift in the judiciary? A good start would be to stop talking about ‘educating judges’ and start talking about ‘learning for judges’. The efforts of the National Judicial College will come to a naught unless the members of the judiciary are willing to accept that to be an effective judicial officer one has to be a willing lifelong learner, not just about the ‘job’, but also about the society to whom he or she is accountable. Indeed, a person who is not willing to embrace this concept is disqualified from holding judicial office, no matter how learned in the law he or she might be. As is all too common, the conservation of the law has resulted in learning by the judiciary lagging behind learning in the rest of society.

The next thing that is needed for effective learning by judges is a widespread acceptance in the judiciary that lifelong learning for judicial officers will be the most effective if it is self-directed and collaborative. It is just not possible to force anyone, let alone an independent judicial officer, to learn.

Some of the best learning comes from collaboration. There is an even greater need for collaborative learning by the judiciary because the job of judging is, by its very nature, a lonely individualistic task and tends to isolate one judge from another. Self-directed collaborative learning will not come about unless the court creates the right atmosphere and opportunities for it to occur. Attendance at seminars and lectures is a process of instruction. Apart from the occasional exception, this is about as far as judicial education of judges has progressed in this country. What is needed is a process of ‘construction’. Learning by construction instead of instruction will only thrive in a collaborative learning environment in which knowledge is shared and built on in a constructive way. Such an environment will stimulate the judicial officers to think ‘outside the square’ and encourage the application of learning in on area to another.

This kind of learning environment will not come about unless a judge is not only given the job of professional development officer, but also whose appointment, as such, is supported by the other judicial officers. The professional development officer is a familiar face in other workplaces, why should it be any different in the judiciary?

The kind of learning propounded needs the support of the Executive. That branch of government should recognise the importance of lifelong learning in a collaborative style to judicial office and provide funds and time for professional development. It is suggested that judges do not need educating at all, but they do badly need willingly to embrace the need for lifelong learning in a collaborative style. But this will require a huge cultural change.