“Judges serve the public, but they are not public servants” the Victorian Chief Justice, Marilyn Warren informed the Judicial Conference of Australia Colloquium earlier this month; then went on to claim anyone suggesting they were (as Victorian Attorney-General, Rob Hulls had done earlier in the day) “displays a complete misunderstanding of the structure of government”.
So the Victorian Chief Justice does not see judges as public servants, but the Victorian Attorney-General does.
Who is right?
Well, it doesn’t matter a whit, but with all due respect to the Chief Justice, it has nothing to do with understanding the structure of Government; it is purely a matter of how one defines public servant. The Attorney-General’s point, in the context in which it was made, is that judges, being paid by the public to serve the public, should, like everyone else who is paid by the public to serve the public, have to account to the public.
The debate seems petty, and it is, but the issue from which public attention is being diverted is most certainly not. I refer to the issue that kicked off the spat, an issue that troubles them both: judicial accountability and the judicial complaints system in Victoria.
The genesis of the current judicial accountability problem in Victoria can be traced back to 2005, when the government introduced what has to rate as one of the worst designed and most ineffectual judicial complaints systems in legal history. In fact, it is a system that has seen the judges of this State virtually unaccountable since its introduction.
Under the 2005 model, minor complaints of judicial misconduct are dealt with internally, though no indication is given as to how they are graded or what process is involved. Serious complaints go through an abstruse procedure whereby if the Attorney-General is satisfied there are reasonable grounds for the carrying out of an investigation he appoints a committee to report as to whether facts exist that could amount to proved misbehaviour or incapacity such as to warrant removing the judge. Then, if the Attorney-General considers it appropriate, parliament votes on removal.
The reader will have noted that the Attorney-General not only gets to decide what matters are to be investigated and who does the investigating, but whether or not Parliament actually gets to vote on the judge’s removal. This, of course, gives the Attorney-General extraordinary theoretical power over the judiciary. Strange as it might seem to the layperson, it is this theoretical power that makes the 2005 model completely unworkable. And yes, the correct adjective is theoretical; it’s theoretical because it’s a power the Attorney-General has never used, and it’s a power that he very clearly signalled in his address to the Colloquium (earlier this month), he does not want.
Without so much as a nod to the debacle that is the 2005 model, he declared in no uncertain terms that he is exploring new options for the investigation of judicial complaints in Victoria, and that he expects the judges of the State to be fully accountable.
For this Rob Hulls is to be highly commended. He is acknowledging he was sold a dud with the 2005 model, and at the Colloquium he very publicly demonstrated he has the courage and integrity to ditch it, and seek out a model that works. He deserves the encouragement and support of every citizen in the State - especially the judges, for it is their profession that suffers most when a dysfunctional complaints system allows the errant few to cast their shadow over the honourable many.
Howsoever the 2005 model came to be accepted by such a sophisticated legal system as ours is an enigma; indeed, as this writer wrote earlier in criticism:
… one wonders what rationale lies behind a system that so unwisely tilts the balance in our sacred trinity of governmental structure: the Separation of Powers. The Attorney-General’s unfettered power places him in an impossible situation. If he instigates an investigation into judicial conduct, he risks accusations of abuse of power; if he doesn’t, he stands accused of inaction. In other words: damned if he does, damned if he doesn’t! (“Victoria's Judges Are Effectively Unaccountable”, March 2009, On Line Opinion.)
The basic design structure of the 2005 model, displays either, if the writer may borrow the words of the Chief Justice, “a complete misunderstanding of the structure of government”, or a complete disregard for it. Paradoxically, in a paper delivered to the National Judicial College of Australia Conference (Judicial Appointments, Judicial Behaviour and Complaint Mechanisms, 2007), the Chief Justice appeared to have no quibble with the structural nature of the model, proclaiming that it “provides an independent structure that should be less cumbersome and more timely” than the system it superseded.
Just to finish on one other matter regarding the Chief Justice: in her address to the Colloquium she remarked “… in my six years as Chief Justice I have not received complaints against judges or associate judges as to improper conduct, fraud, or matters of that grave nature”.
The writer is greatly puzzled by the above comment because he is aware of one complaint lodged in 2006, alleging what he considered to be particularly serious misconduct by no less a personage than a judge of the Supreme Court. Whether this is another definitional matter, the solution to which lies in just what sort of conduct the Chief Justice sees embraced within the words improper conduct, fraud, or matters of that grave nature, or the result of an impotent system, we will probably never know, but whatever unhealthy process saw the aforementioned complaint summarily and covertly consigned to nonbeing, Victorians should be grateful that the Attorney-General has now signalled his determination to deliver a judicial complaints system that will actually investigate complaints.