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Allsop, J --- "Continuing judicial education: the Australian experience" [2013] LegEdDig 37; (2013) 21(3) Legal Education Digest 18


Continuing judicial education: the Australian experience

J Allsop

Judicial Review, Vol 10, No.4, 2012, pp 439-454

As with the need for continuing education in other professions, the need for continuing judicial education is now widely accepted in Australia. Judicial education bodies have provided programs for Australian judicial officers since the late 1980s. Unlike other professional education however, the purpose of continuing judicial education extends beyond the need to improve professional competence and performance. The ultimate purpose of judicial education is to improve the quality of justice within the paradigm of reconciling the ‘divergent and to some extent inconsistent requirements of public accountability, judicial independence, and efficiency in the administration of justice’.

The Australian court system operates at the Commonwealth, State and Territory level.

Within these jurisdictions, the judicial system is one of three branches of government comprising the executive, the legislature and the judiciary. There is a separation of the judicial branch from the other branches of government to provide a structural mechanism for supervision of the lawfulness of the exercise of power by the executive and the constitutionality of legislation by Parliament. Judicial independence is an inherent requirement of this system and is a central value of the rule of law. Within this system, the duty of a judge is ‘to administer justice according to the law, without fear or favour, and without regard to the wishes or policy of the executive government’. An essential attribute of judicial independence is judicial skill and knowledge.

Australia is a common law system in which judicial officers are appointed by the executive branch of government. A successful and lengthy legal career, usually as a barrister or solicitor or, sometimes, as a legal academic, is almost always a precondition for judicial appointment. Most judges are appointed aged above 50, some below the age of 50. Judicial appointments are based on merit. The Australian system moves experienced legal professionals within an adversarial system to a judicial position. It is expected that the new judge has that stock of knowledge built up in his or her career so that he or she can commence work immediately. The place of judicial education at this point is to assist in the transition from advocate to impartial adjudicator.

In Australia, in recent years, there has been public discussion about whether the appointment of judges should rest solely with the executive. Some have urged independent advisory bodies to recommend appointments.

In 2008, the federal Attorney-General introduced new processes for appointing judges and magistrates to federal courts, including: (1) broad consultation to identify suitable persons; (2) notification of appointment criteria; (3) notices in the media seeking expressions of interest and nominations; and (4) the appointment of advisory panels to assess expressions of interest and nominations and to develop a shortlist of suitable candidates.

In 2009, a Senate Legal and Constitutional Affairs Committee of the national legislature inquired into Australia’s judicial system and the role of federal judges. The inquiry examined: (1) procedures for the appointment and method of termination of judges; (2) the term of appointment, including the desirability of a compulsory retirement age; and (3) the merit of full-time, part-time or other arrangements.

The Committee recommended limited reform to the judicial selection and appointment process, including the adoption of a protocol for appointments to the High Court, greater transparency by publicising the number of nominations and applications received for each federal vacancy, and the wide advertising of vacancies. The Federal Government announced in October 2010 that it would adopt each recommendation in part, but would preserve the appointment of judicial officers by the executive government.

Vacancies for positions as a District Court judge, magistrate or specialist tribunal member are advertised in the media and a selection panel comprising the head of jurisdiction or authority, a retired judicial officer, a prominent community member and a leading member of the profession is convened to assess candidates. The selection panel makes recommendations to the Attorney General who advises the Governor about judicial appointments. The Governor, with the advice of the Executive Council, formally appoints a judicial officer under s 47 of the Constitution Act 1902 (NSW).

A judicial officer in Australia holds office during good behaviour: Since the Act of Settlement 1701 (UK), a judge enjoys security of tenure as a necessary protection against the undue influence of other branches of government and can only be removed from office following an address from both Houses of Parliament for proven misbehaviour or incapacity.

In New South Wales, a judicial officer can only be removed following the tabling in both Houses of Parliament of a report by the Conduct Division of the Judicial Commission of NSW. The Conduct Division is constituted when a complaint made to the Judicial Commission about a judicial officer’s behaviour or ability is not summarily dismissed and is referred to the Conduct Division in accordance with s 21(1) of the Judicial Officers Act 1986. In December 2009, the federal Senate Legal and Constitutional Affairs Committee recommended the establishment of a federal judicial commission modelled on the Judicial Commission of NSW.

Given that the grounds for removal of a judicial officer are for proved misbehaviour or incapacity, the necessary aims of judicial education must be to promote the highest standards of behaviour befitting judicial office and to foster judicial capacity. Because a successful legal career is a precondition for judicial appointment, judicial education is directed at already experienced legal professionals. The need is better expressed not as a need for judicial training, but rather for judicial education, which focuses on induction, orientation and transition to the Bench, and then on a continuous renewal of professional education and a sharpening of judicial skills. It is beyond doubt that the judicial function requires professional skills of a very high order.

It is also necessary for judicial officers to have appropriate knowledge in the subject matters of the disputes to be heard. Appellate court judges are required to formulate, elucidate and elaborate general principles of law and where relevant, policy, and identify possible error and correct possible injustice.

The overarching purposes of judicial education are to facilitate just and efficient dispute resolution, and to preserve judicial independence and accountability. Judicial education provides a mechanism to achieve this by equipping judges to serve their courts, which in turn, serve the community. Both the individual accountability of judicial officers and the institutional accountability of courts enhance the quality of the administration of justice. By providing an effective program of judicial education, judicial independence and accountability are not opposed, but work towards the same end.

Formal judicial education commenced in common law countries in 1963 when the American National Judicial College was established and then Chief Justice Warren Burger called for judges nationally to participate in continuing judicial education.

Australia followed the North American lead some 20 years later with the formation by judges of the Australian Institute of Judicial Administration (AIJA) in 1975. In his 1983 Boyer lectures broadcast on ABC radio, then Federal Court Justice Michael Kirby called for formalised judicial education to assist newly appointed judicial officers in their transition to the Bench. It took another decade before any permanent funding and infrastructure was dedicated to judicial education with the formation of the Judicial Commission of NSW in 1986 and the AIJA Secretariat in 1987. In 1986, legislation was enacted in New South Wales to establish the Judicial Commission of NSW as both a judicial complaints and judicial education body run by the executive government. The legislation was enacted in response to a perceived crisis in public confidence in the justice system in the wake of criminal charges against a High Court judge, the conviction of a former Chief Magistrate, and allegations of inconsistent sentencing in the District Court. Judicial pressure on the government led to substantial amendments to the legislation and the Judicial Commission was ultimately established as an independent statutory corporation with its staff wholly independent of the Public Service. The vitally important features of the Judicial Commission are that it is independent from the executive and it deals with both complaints about judicial officers and the education of judicial officers

The Judicial College of Victoria began operating in November 2002 to provide judicial education, professional development, publications and resources for judicial officers. It is funded by the State government as is the Judicial Commission of NSW. No other Australian State has a similar dedicated organisation.

At the national level, the Judicial Conference of Australia was formed in 1993. Its governing council is drawn from judges and magistrates from all Australian jurisdictions. The Judicial Conference organises annual colloquiums and produces resources and publications in relation to the ‘public interest in maintaining a strong and independent judiciary within a democratic society that adheres to the rule of law’. The National Judicial College of Australia (NJCA) was established in May 2002 following an inquiry and recommendations of the Australian Law Reform Commission. This organisation is controlled by a governing council, the majority of whose members are judicial officers and is funded by contributions from the Commonwealth and some State and Territory governments. The College provides professional development for Commonwealth judicial officers and other participating States and Territories and plans and coordinates judicial education at the national level for federal and State judicial officers. The AIJA continues to provide research, educational resources and publications in relation to court administration and the judicial system. The AIJA has developed courses in relation to gender awareness, cultural awareness, court technology and case management. It is funded by the Standing Committee of Attorneys-General and by subscription income from its membership.

Along with formal judicial education bodies, most courts in each federal and State jurisdictions, with the exception of New South Wales, have had for many years their own education committee, and many courts run annual conferences and professional development seminars.

Because Australia’s justice system operates at both the federal and State levels, and there are different court structures at each State, Territory and Commonwealth level, formalised judicial education has developed incrementally in federal and State jurisdictions over the past two decades. Until the formation of the NJCA in 2002, there had been no attempt to plan and coordinate judicial education at a national level unlike the position in Britain, Canada, America and New Zealand.

The diffuse structure of judicial education in Australasia became the focus of a review undertaken by the NJCA in 2009. Mr George Thomson of the National Judicial Institute of Canada conducted a wide review into the NJCN’s work and he recommended a more collegiate approach to judicial education by the various State and national bodies referred to above together with the New Zealand Institute of Judicial Studies. The Australian Council of Chief Justices has endorsed this approach. To achieve this objective, Mr Thomson recommended that curriculum development be made a priority and the various bodies agree as to which organisation would develop particular modules of education. The intention would then be for the organisations to share the programs they have developed with other organisations and trainers would be encouraged to assist in the delivery of these programs to all jurisdictions. The aim of this approach is to encourage maximum return from limited funding and resources.

The Thomson review also led to two faculty development workshops being held in Australia in 2010. The focus of the workshops was to develop course design skills for judicial officers with the aim to establish a group of judicial officers with ongoing responsibility for course design. Judicial officers participating in the workshops were involved in designing a portion of a module using sound adult education design principles. The modules, once completed, may then be used in future by the participating judicial education bodies as part of their curriculum.

In October 2009, a meeting of Australian and New Zealand judicial education bodies agreed to contribute to an electronic clearinghouse/judicial library of past programs and other relevant materials which would be accessible by all judicial education bodies and by all judicial officers.

The NJCA initiated a process in 2004 to prepare and promote a national standard or benchmark for the amount of time and funding that should be available for each member of the Australian judiciary for professional development. This led to the development of the standard which has been endorsed by the Council of Chief Justices of Australia, Chief Judges, Chief Magistrates, the Judicial Conference of Australia, the Association of Australian Magistrates, the AIJA and judicial education bodies. The standard was reviewed in late 2010, and following this review, the standard continues to be:

Each judicial officer should be able to spend at least five days each calendar year participating in professional development activities relating to the judicial officer’s responsibilities.

This standard need not be met in each year but can be met on the basis of professional development activities engaged in over a period of three years.

This standard can be met, in part, by self-directed professional development.

Judicial officers should be released from court duties to enable them to meet this standard. However, judicial officers should commit some private time to meet the standard.

The Judicial Commission works closely with the education committees of each court in New South Wales to promote judge-led judicial education. This is in keeping with the Commission’s obligation to consult, and takes into account the benefit of participant involvement at various stages, including program design. These committees regularly meet to discuss the proposed judicial education programs for their particular court. The Judicial Commission’s professional staff attend education committee meetings and provide educational input and support. Additionally, a Standing Advisory Committee on Judicial Education (SAC) was established with a representative from each of the court committees. The SAC provides general guidelines and informs each jurisdiction of the activities in the various courts. As well as working with the court education committees, the Judicial Commission consults widely, and shares information and ideas, with other Australian and international education providers.

The Judicial Commission recognises that effective judicial education has to be based on sound adult education design principles and focus on experiential and interactive learning, that is, learning based on experience and enhancing judicial skills. The Commission has been influenced by the work of David Kolb and the National Judicial Institute of Canada.

The content of these interactive sessions includes: (1) communication skills; (2) courtroom management skills; (3) efficiency skills; (4) judgment writing skills; and (5) social and cultural awareness training.

The Commission continues to provide some traditional ‘black letter’ style law sessions and material to update judicial officers on current legal developments and emerging trends.

Although not universally agreed in Australia, the Judicial Commission’s view is that examining complaints about judicial officers allows the Commission to monitor patterns in the nature and scope of complaints that may be addressed in specific judicial education sessions. Information gathered from complaints is used to develop specific education sessions on topics such as effective courtroom communication, domestic violence, sexual assault issues and cultural awareness training.

The Commission offers an extensive conference and seminar program for judicial officers, ranging from induction courses for new appointees to specialist conferences on specific aspects of law, procedure and judicial skills and techniques.

Some educational sessions are held during court time; many others are conducted after court hours and on weekends in judicial officers’ own time. Approximately 1550 days of continuing judicial education were attended by judges and magistrates between July 2009 and June 2010. Attendance by judicial officers at the Commission’s programs is voluntary.

The Judicial Commission, along with other judicial education bodies in Australia, has conducted successful judgment writing and oral decisions workshops for judicial officers in recent years. These interactive workshops help participants develop and refine their ability to write and deliver clear, concise, well-structured judgments.

The Commission has also offered judicial officers the opportunity to participate in field trips, visits to gaols and correctional centres, and weekend visits to Aboriginal communities with the aim of increasing awareness among judicial officers about contemporary Aboriginal society, customs and traditions, and their effect on Aboriginal people in the justice system. Other Australian judicial education providers run similar programs.

The Commission’s conference program is supplemented by an active publishing program. The Judicial Commission provides to each New South Wales judicial officer a full range of publications on appointment, including: (1) a bench book relating to their court’s practice and procedure (Local Court Bench Book or Criminal Trial Courts Bench Book); (2) Sentencing Bench Book; (3) Equality before the Law Bench Book; (4) Civil Trials Bench Book; (5) Sexual Assault Handbook; (6) Judicial Officers’ Bulletin; (7) The Judicial Review; (8) Sentencing Trends and Issues papers; (9) education monographs; (10) research monographs; (11) DVDs on The Role of the Judge, Concurrent Evidence, Circle Sentencing; and (12) conference paper database.

The Judicial Information Research System (JIRS) is an online decision support system available for all New South Wales judicial officers. It contains information on all aspects of sentencing law, including case law, legislation and sentencing statistics. It is designed to provide judicial officers with timely information to assist in decision-making and is updated regularly. JIRS is the most effective and direct way to communicate information about the latest legal developments. The system operates as an intranet.

All educational sessions conducted by the Judicial Commission are evaluated for their effectiveness in order to: (1) ensure that the sessions provide useful assistance and benefits to judicial officers in the performance of their professional duties; and (2) provide feedback to presenters to ensure their sessions meet the needs of judicial officers.

All judicial officers are encouraged to provide feedback based on specified learning objectives for each educational activity by completing evaluation forms.

The Chief Justice of Western Australia, the Honourable Wayne Martin, recently observed that this is an exciting time for judicial education in Australia. The aims of judicial education will continue to be the promotion of the highest standards of behaviour befitting judicial office and to foster judicial capacity and skills. The purposes of judicial education will continue to be the development of judicial skills, the preservation of judicial independence and to provide individual and institutional accountability. Australian judicial education providers are now slowly but surely working towards a more collegiate and national approach to the design and delivery of education programs which will meet the diverse needs of judicial officers.


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