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Mechanisms of Accountability

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Abstract

This Chapter, the final of Part V, builds on the foundational principles of judicial accountability developed previously to explore, in a relatively comprehensive manner, the manifestation of these principles through the various mechanisms of judicial accountability.

The Chapter begins by a developing a taxonomical framework for the characterisation of those mechanisms, highlighting the variables (including addressee, subject, standard, formality and task) present in different mechanisms. It develops a structural approach where accountability mechanisms are directed to three broad categories of judicial conduct: (1) the personal conduct and behaviour of the individual judge; (2) the substantive performance of the judicial role; and (3) the administration and operation of the judicial institution. Each of these categories speaks to different interests of the judge and aspects of the judicial role, and within each category is a range of responsive mechanism.

The Chapter proceeds to examine the various mechanisms of accountability that commonly arise under each of these categories – highlighting their strengths, limitations and motive force directed to the underlying objectives of the judicial function. It argues that while mechanisms of accountability, such as those examined here, are undoubtedly required to ensure the judiciary consistently and demonstrably discharges the judicial function with a high degree of quality, they remain instrumental devices. Each mechanism must, ultimately, be assessed on its ability to enhance actual integrity and the reputation for it, and thereby advance the performance of the judicial function.

At their best, these mechanisms together provide a comprehensive and calibrated system of judicial accountability, ensuring that judicial performance complies with the strictures of impartiality and the imperatives of method in a manner that leads to the excellent performance of the judicial function.

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Notes

  1. 1.

    Cappelletti (1989), pp. 72, Geyh (2008), p. 917.

  2. 2.

    See Cappelletti (1989), p. 72.

  3. 3.

    See Denham (2001), p. 51.

  4. 4.

    See Geyh (2008), pp. 915–6.

  5. 5.

    The survey I offer below does not claim to be exhaustive of the various attempts at classification, but rather represents the more significant of these attempts. Other models include that of Contini and Mohr who distinguish between traditional ‘legal’ accountability and new methods of ‘managerial’ accountability: Contini and Mohr (2007), p. 30. See also Corder (2001), p. 202.

  6. 6.

    Cappelletti (1989), p. 72.

  7. 7.

    Cappelletti highlights the different forms of accountability to the political branches, to the public, and to the law: ibid., pp. 75, 86.

  8. 8.

    As Cappelletti notes, ‘political liability’ requires a political evaluation whereas legal accountability will only reprimand violations of the law, rather than merely politically or socially substandard behaviour: ibid., pp. 73, 75.

  9. 9.

    Shetreet (1985), p. 654, Shetreet (1986), p. 38.

  10. 10.

    In this sense he builds upon the work of Shetreet: see Le Sueur (2004), pp. 79–80.

  11. 11.

    Ibid., pp. 78–9.

  12. 12.

    Ibid., pp. 80–7.

  13. 13.

    As Le Sueur argues, the closer the task is to the core judicial function, the higher the degree of ‘independence’ will be expected, making ‘content’ accountability more controversial than ‘probity’ accountability: Le Sueur (2004), pp. 80, 86–7.

  14. 14.

    See Geyh (2008), p. 917.

  15. 15.

    Ibid., p. 914.

  16. 16.

    This category concerns the institutional performance accountability of the collective judiciary: ibid., pp. 917–8.

  17. 17.

    Geyh notes that a judge’s behaviour, both judicial and extra-judicial, can reflect adversely on his or her ‘integrity, independence or impartiality’ to diminish fitness for judicial office: ibid., pp. 919–20.

  18. 18.

    Ibid., p. 922. This category, providing a means to correct and discourage judicial error, reflects Le Sueur’s ‘content’ accountability.

  19. 19.

    This division reflects the categories of influence examined in Part IV on judicial impartiality, linking accountability firstly to the judicial ‘job’, secondly to the financial security and personal liberty of the judge, and thirdly to more diffuse social interests such as personal reputation.

  20. 20.

    For example, the possibility of sanction can promote that institutional reputation for integrity by reinforcing public standards, communicating that certain behaviour is not desired and will be punished.

  21. 21.

    Handsley (2001b), p. 185.

  22. 22.

    Marshall (1995), p. 74.

  23. 23.

    Ibid.

  24. 24.

    Cf Handsley (2001b), p. 185.

  25. 25.

    Rewards motivate the judge through self-interest, creating a ‘threshold mentality’ where the judge need only do the bare minimum required to attain the reward. This is contrasted with integrity, which drives the judge to pursue judicial quality and excellence in its own right.

  26. 26.

    See Marshall (2006), pp. 942–4.

  27. 27.

    As Geyh argues, judges should be granted the freedom to not only do the right thing, but also, ‘believing it to be the right thing, to do the wrong thing’: Geyh (2008), p. 925.

  28. 28.

    Geyh usefully argues that mechanisms designed to hold judges to account for competent, honest, decision-making errors are properly ‘limited to the corrective and exclude the disciplinary or punitive’: ibid., p. 925.

  29. 29.

    Harris (2008), p. 486.

  30. 30.

    The knowledge that these mechanisms exist, that deviant behaviour will be disciplined, can reassure the public and promote public confidence. It is important to highlight this broad range of roles to properly assess any mechanism. For example, while empirical evidence may show disciplinary procedures are rarely utilised (see Volcansek (1996), pp. 75, 111, Lafon (1996), p. 41, Roach Anleu et al. (2014), p. 633) this does not necessarily demonstrate that those mechanisms are ineffective. These mechanisms may be effectively performing other roles: low rates of usage may be evidence of effective deterrence and education.

  31. 31.

    I exclude the possibility of direct reduction of judicial salary as a form of sanction, as there is a broad acceptance of its inappropriateness as a disciplinary sanction.

  32. 32.

    As Handsley notes, the sanction ‘has a long and respectable history of acceptance’: Handsley (2001b), p. 214. As Johnson notes, ‘[t]here is no reason why a Judge should hold his office for life, more than any other person in public trust’: see Boswell (first published 1791, 1958 ed), p. 619.

  33. 33.

    Lafon (1996), p. 44. Involuntary transfer acts as a form of ‘judicial exile’, banishing a judge to socially and professionally undesirable locations.

  34. 34.

    Such allocations, whether repetitive, drudgerous, difficult, or dull, can operate as a subtle, yet effective, punishment. Such allocative sanctions are more commonly utilised as informal rather than formal disciplinary procedures. Morabito gives the example of a Sydney judge who, on being acquitted on charges of attempting to pervert the course of justice, returned to the bench but was subsequently only ever assigned civil matters: Morabito (1994), p. 75.

  35. 35.

    Handsley (2001b), p. 216.

  36. 36.

    Roach Anleu et al. (2014), pp. 637–8.

  37. 37.

    Russell (1987), p. 182. He argues that if only the ‘death penalty’ option of removal from office is available there will be no effective response to legitimate complaints insufficiently serious to justify dismissal.

  38. 38.

    Handsley (2001b), p. 214.

  39. 39.

    Ibid., p. 186. For this reason, McLelland describes these sanctions as ‘objectionable in principle’: McLelland (1990), p. 393.

  40. 40.

    See Handsley (2001b), p. 214.

  41. 41.

    Geyh (2008), p. 914. See also Marshall (1995), p. 67.

  42. 42.

    Marshall (1995), p. 67.

  43. 43.

    Shetreet (1986), p. 40. See International Bar Association, Code of Minimum Standards of Judicial Independence (1982) (adopted at the IBA Biennial Conference on 22 October 1982) § 27–32; Universal Declaration on the Independence of Justice (1983) (adopted at the final plenary session of the First World Conference on the Independence of Justice on 10 June 1983) § 2–38; Tokyo Principles on the Independence of the Judiciary in the LAWASIA Region (1982) (adopted by the LAWASIA Human Rights Standing Committee on 17–8 July 1982) § 11(d).

  44. 44.

    Handsley (2001a), p. 78.

  45. 45.

    As Jayawickrama notes, in the face of corruption ‘people inevitably lose confidence in their judicial system’: Jayawickrama (2002), p. 565.

  46. 46.

    Ibid., p. 562. As Wallace notes, these concerns are not restricted to developing countries: Wallace (1998), pp. 341–2.

  47. 47.

    Jayawickrama (2002), p. 566.

  48. 48.

    These abuses may include attempts to use the judicial office to promote political positions, or assist relatives, friends or colleagues.

  49. 49.

    While abuses of office may constitute criminal offences, my focus here is on the direct professional sanctions that follow such conduct, and not derivative criminal sanctions.

  50. 50.

    It is in this context the fact of criminal conduct, rather than nature of the underlying conduct, which exposes the judge to the possibility of sanction.

  51. 51.

    Shetreet examines the different responses to convictions for traffic offences: Shetreet (1985), p. 368,

  52. 52.

    It is worth recognising that in practice convictions are rarely relied upon to justify professional sanctions, as a judge will generally resign from office following a serious conviction.

  53. 53.

    Lafon (1996), p. 32.

  54. 54.

    Such conduct may be described as scandalous or ‘disgraceful’ conduct (Thomas (1988), p. 3) or as conduct that undermines the ‘dignity of the office’ and represents a failure of appropriate judicial reserve: Lafon (1996), p. 33.

  55. 55.

    See Shetreet (1976), pp. 371–3. As Lafon observes, ‘women and gambling led more than one... [judge]... astray’: Lafon (1996), p. 32. See also Pannick (1987), p. 91.

  56. 56.

    Lafon (1996), p. 44.

  57. 57.

    See ibid. pp. 33, 44.

  58. 58.

    Indeed, Lafon suggests this ground of discipline have often been intentionally described in ambiguous terms: Lafon (1996), pp. 31–3.

  59. 59.

    Handsley (2001b), p. 204. As Shetreet notes, it is often listed as a ground of discipline: Shetreet (1986), p. 40.

  60. 60.

    Shetreet (1987), p. 14, Handsley (2001b), p. 204.

  61. 61.

    This is particularly so where the judge acts with some particular flair or harmless eccentricity: Shetreet (1987), p. 15.

  62. 62.

    Ibid., p. 15, Handsley (2001b), p. 204.

  63. 63.

    Shetreet (1987), p. 15, Handsley (2001b), p. 204.

  64. 64.

    Shetreet (1986), p. 40. Shetreet argues that such restrictions are the ‘price’ society pays for judicial independence: Shetreet (1987), p. 15.

  65. 65.

    I recognise that incapacity sits uneasily within the framework of personal professional discipline as it involves no inference of wrongdoing, yet I include it here both because the judge is ‘sanctioned’ by removal from office and because the procedures utilised often reflect the formality and solemnity required in other disciplinary processes.

  66. 66.

    For example, the continued occupation of that office may risk embarrassing both the judge and his/her family, as well as putting him/her under pressure, through the duties and responsibilities of that office, in way that may impede the recovery of his/her health.

  67. 67.

    See Shetreet (1987), p. 15.

  68. 68.

    But see Roach Anleu et al. (2014), pp. 631–3, discussing a formal investigation by the Judicial Commission of New South Wales into complaints against a New South Wales magistrate.

  69. 69.

    See Morabito (1994), pp. 77–8.

  70. 70.

    The Privy Council, over a very strong dissent, held that the Chief Justice could not adequately discharge his duties, and therefore sufficiently lacked the requisite capacity so as to justify removal: Re Hearing on the Report of The Chief Justice of Gibraltar [2009] UKPC 43.

  71. 71.

    For critique of this poorly reasoned decision, that has a distinct element of imperialistic parochialism: see McClean (2010).

  72. 72.

    Denham (2001), p. 51.

  73. 73.

    For the history of the Address: see Shetreet (1976), chs. 4, 6.

  74. 74.

    For examination of the mechanism’s usages: see ibid., ch. 4. As Volcansek notes, it may be that many inquiries were only initiated to seek censure or rebuke, and not, ultimately to remove the judge: Volcansek (1996), p. 75.

  75. 75.

    Morabito (1994), p.. 85.

  76. 76.

    Ibid., pp. 83, 85.

  77. 77.

    See ibid., p. 88.

  78. 78.

    See Cappelletti (1989), pp. 73–8.

  79. 79.

    For example, Marshall notes that remains a real risk of abuse, that the mechanism may be used to score political points: Marshall (2006), p. 938.

  80. 80.

    See Bell (2006), p. 27. A notable use in a common law jurisdiction arose in New South Wales: see Shetreet (1987), Morabito (1993). See also Harris (2008), pp. 504–9. This model has become more common in recent years – see for example Judicial Commissions Act 1994 (ACT); Judicial Conduct Commissioner Act 2015 (SA); Judicial Commission of Victoria Act 2016 (Vic).

  81. 81.

    There is some truth in the observation of Lafon that a ‘judge who is faced with a disciplinary proceeding is marked [and] his or her career compromised’: Lafon (1996), p. 35.

  82. 82.

    Thomas (1988), pp. 89–91.

  83. 83.

    As Thomas eloquently observes, ‘[i]f judges are presented as an available target, it is inevitable that many people will roll up for a shot’: Thomas (1988), p. 89. See also McLelland (1990), p. 390.

  84. 84.

    See McLelland (1990), p. 391. For example, a review of the Annual Reports of emergent Judicial Conduct Commissions reveal that very few complaints are upheld, and that most are dismissed summarily or not subject to a full investigation: See Judicial Conduct Investigations Office (UK) (2018), p. 8; Judicial Commission of New South Wales (2018), p. 49; Judicial Conduct Commissioner (SA) (2018), pp. 7, 9–12.

  85. 85.

    See Volcansek (1996), pp. 80–1. These pressures may also follow, rather than precede, formal disciplinary procedures. As Shetreet notes, in many cases where a judge is subject to a Parliamentary Inquiry the judge retires soon after, irrespective of the formal outcome: Shetreet (1976), pp. 143–7. See also Morabito (1994), p. 75.

  86. 86.

    As Morabito notes, it can also conflict with ideals of formal equality between judges, and place ‘unfair and inappropriate’ burdens upon the Chief Justice: Morabito (1994), p. 77.

  87. 87.

    As McLelland argues, it is ‘wrong in principle’ that a judge should be compelled to bear his or her own costs in relation to disciplinary hearings, as it is as much in the public interest ‘that a judge innocent of misconduct should be exonerated as it is that a judge guilty of misconduct should be condemned’: McLelland (1990), p. 392.

  88. 88.

    Shetreet (1986), p. 40.

  89. 89.

    See generally Morabito (1993), p. 490.

  90. 90.

    A judge can ‘be made to answer, and in the proper case pay dearly, for any criminal misconduct’: Nakhla v McCarthy [1978] 1 NZLR 291, 294. In some jurisdictions, a limited criminal immunity may be granted by statute: See for example Fingleton v The Queen (2005) 227 CLR 166.

  91. 91.

    See generally Olowofoyeku (1993).

  92. 92.

    See generally Harris (2008), p. 512.

  93. 93.

    See ibid., p. 511. It is important here to distinguish between the judge as the conduit for state liability and the judge as the person who is held responsible. In some countries, if a judgment has been seriously irregular, the victim can sue the state: Köbler v Austria (C-224/01) [2003] ECR I-10290. In England, the normal response would be to sue the judge, with the state as employer standing behind the judge. Civil immunity complicates this model of ‘judge-as-cipher’. One response to this problem is to hold the state directly responsible under doctrines of vicarious liability: Cappelletti (1989), pp. 86–9.

  94. 94.

    See de Franciscis (1996), pp. 62–3. As de Franciscis notes, procedural limitations have since become so onerous as to effectively create a ‘procedural’ immunity.

  95. 95.

    See Floyd v Baker (1607) 12 Co Rep 23.

  96. 96.

    Hamond v Howell (1674) 1 Mod Rep 119. For an overview of the history: see Harris (2008), p. 384, Volcansek (1996), p. 82.

  97. 97.

    See Gazley v Lord Cook of Thorndon [1999] 2 NZLR 668, 681; Harris (2008), p. 494.

  98. 98.

    The immunity is generally taken to cover a judge ‘when he is acting in the bona fide exercise of his office and under the belief that he has jurisdiction’ (Sirros v Moore [1975] QB 118, 135), but will extend to protect the judge ‘even where the judge is accused of acting maliciously and corruptly’ (Pierson v Ray, 386 US 547, 553–4 (1967); Rajski v Powell (1987) 11 NSWLR 522, 534) so that even if ‘the judge was under some gross error or ignorance, or was actuated by envy, hatred and malice and all uncharitableness, he is not liable to an action’ (Sirros v Moore [1975] QB 118, 132).

  99. 99.

    Pierson v Ray, 386 US 547, 553–4 (1967). Of course, instances of malice and deliberate misbehaviour may expose the judge to accountability under disciplinary and criminal mechanisms. In such cases it is likely that any punishment imposed will be very severe, recognising the gross breach of trust and abuse of position by the judge.

  100. 100.

    Cappelletti (1989), p. 110.

  101. 101.

    Sirros v Moore [1975] QB 118, 132. As Denning MR memorably observed, a judge should ‘not have to turn the pages of his book with trembling fingers, asking himself “If I do this, shall I be liable in damages?”’: at 136.

  102. 102.

    Harris (2008), p. 487.

  103. 103.

    Cappelletti (1989), p. 66.

  104. 104.

    As Harris (2008) notes, liability creates the potential for near infinite series of challenges: p. 488.

  105. 105.

    Cappelletti (1989), p. 66. See Gazley v Lord Cook of Thorndon [1999] 2 NZLR 668, 684; Floyd v Baker (1607) 12 Co Rep 23; Bradley v Fisher, 80 US (13 Wall) 335, 348 (1871).

  106. 106.

    Nakhla v McCarthy [1978] 1 NZLR 291, 294.

  107. 107.

    Volcansek (1996), p. 82, Harris (2008), p. 487. Immunity protects the judge from such harassment, removing a lightning rod for dissatisfied and angry litigants: see Pierson v Ray, 386 US 547, 553–4 (1967).

  108. 108.

    Harris (2008), p. 487.

  109. 109.

    Ibid.

  110. 110.

    Volcansek (1996), p. 82.

  111. 111.

    It should be noted that while judicial immunity may operate as a ‘collective community good’, it shifts the cost to the individual litigant: Harris (2008), p. 484. While issues may be resolved by mechanisms such as state vicarious liability, or ex gratia payments, such devices are beyond the scope of this book.

  112. 112.

    See King (1995), p. 5.

  113. 113.

    See High Court of Australia Act 1979 (Cth) s 11; Constitutional Reform Act 2005 (UK) c 4, s 32; Promissory Oaths Act 1868 (UK) c 72, s 4.

  114. 114.

    See Denham (2001), p. 49.

  115. 115.

    See Paterson (1982), p. 32.

  116. 116.

    Handsley (2001b), p. 192.

  117. 117.

    A particularly vivid illustration was provided in the controversial appointment of Tim Carmondy as Chief Justice of Queensland in 2014, a move broadly viewed as unmeritorious and entirely political. From the initial boycotting of his welcoming ceremony by all members of the Supreme Court to his eventual resignation 9 months later, the period demonstrated an extensive and visible use of informal sanction by his peers. For a most accessible discussion of the period see Ananian-Welsh et al. (2016). See also the rare instances of an appeal court ‘dressing down’ the first instance judicial officer: eg Were v Police [2003] SASC 116 [12]–[16].

  118. 118.

    Ibid.

  119. 119.

    Colbran notes that as long ago as 1872 Mr. Justice Blackburn argued that the ‘only real potential check on the judges is the habitual respect which they all pay to what is called the opinion of the profession’: Colbran (2003), p. 63.

  120. 120.

    See Shetreet (1976), pp. 115–7.

  121. 121.

    Ibid., p. 230.

  122. 122.

    As those communities expand in size the media can become an important means of disseminating information, and indeed in forming opinion, about judicial conduct.

  123. 123.

    These mechanisms can be considered as being directed to the ‘depersonalised’ judge who constitutes the collective judiciary rather than the named individual.

  124. 124.

    Jeremy Bentham eloquently captured the importance of openness: ‘In the darkness of secrecy, sinister interests and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate’: quoted in Scott v Scott [1913] AC 417, 477.

  125. 125.

    The doctrine has been described as the ‘authentic hallmark of judicial as distinct from administrative procedure’: McPherson v McPherson [1936] AC 177, 200. And as ‘one of the most pervasive axioms of the administration of justice’: Spigelman (2000a), p. 292.

  126. 126.

    R v Sussex Justices; ex parte McCarthy [1924] 1 KB 256, 259.

  127. 127.

    Spigelman (2000a), p. 293.

  128. 128.

    Gleeson (1979), p. 343.

  129. 129.

    See Scott v Scott [1913] AC 417; Dickason v Dickason (1913) 17 CLR 50, 51; Russell v Russell (1976) 134 CLR 495, 520.

  130. 130.

    Spigelman (2000a), p. 294. See McPherson v McPherson [1936] AC 177; R v Tait (1979) 46 FLR 386, 402. Spigelman argues that these exceptions derive from the ‘overriding obligation of a court to deliver justice according to law’: Spigelman (2000a), p. 292.

  131. 131.

    For example, the right to publicly open judicial proceedings is recognised in many international covenants and treaties: International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 14; Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953) art 6.

  132. 132.

    Attorney-General v Leveller Magazine [1979] AC 440, 450. As the Court recognised in Russell v Russell (1976) 134 CLR 495, by conducting judicial proceedings ‘publicly and in full view’ those proceedings are exposed ‘to public and professional scrutiny and criticism, without which abuses may flourish undetected’: at 520.

  133. 133.

    See Gleeson (1979), p. 123–4. Spigelman describes this exposure to external scrutiny as the basic mechanism of accountability: Spigelman (2000b), p. 378.

  134. 134.

    Russell v Russell (1976) 134 CLR 495, 520.

  135. 135.

    Gleeson (1979), p. 342.

  136. 136.

    Spigelman (2000b), p. 378. As Drummond (2001a) notes, this mechanism should not be underestimated: p. 308.

  137. 137.

    Colbran (2003), p. 56, Colbran (2002), p. 237.

  138. 138.

    Arguably, so long as the judiciary know that their conduct is liable to being publicly examined and criticised, the fact that the public gallery is generally empty does not diminish the efficacy of the mechanism.

  139. 139.

    Brennan (1979), p. 767. As Brennan notes, this can be a ‘heavy price’, particularly in cases of commercial sensitivity or national security.

  140. 140.

    Scott v Scott [1913] AC 417, 473.

  141. 141.

    See Gleeson (1979), p. 342.

  142. 142.

    A decision at odds with the evidence, arguments advanced and reasons given highlights the possibility of judicial deviance, perhaps suggesting abuse, partiality or incompetence.

  143. 143.

    Quoted in Nettheim (1986), p. 28.

  144. 144.

    The obligation to give reasons can be considered, at least in part, as a special subset of the principle of open justice. See Spigelman (2000a), p. 294 Soulemezis ν Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 278.

  145. 145.

    Kirby (2003), p. 46. As Kirby notes, the obligation of a court to give reasons is an obligation at large, to make those published reasons publicly available, and not merely to provide reasons to the parties. See also Public Service Board (NSW) v Osmond (1986) 159 CLR 656, 666–7; Fleming v The Queen (1998) 197 CLR 250, 260.

  146. 146.

    Kitto (1992), p. 790.

  147. 147.

    Kirby (2003), p. 46.

  148. 148.

    Kitto (1992), p. 790.

  149. 149.

    See a revealing reflection on this process by Kitto (1992), pp. 791–2.

  150. 150.

    Ibid., p. 795.

  151. 151.

    As Kitto argues: ‘What we think that we think on the spur of the moment often undergoes a remarkable change when we go through the discipline of putting it down on paper and looking at it’: Kitto (1992), p. 796.

  152. 152.

    Le Sueur (2004), p. 89. As Drummond notes, it involves taking public responsibility for that decision, both to justify it and ensure its quality: Drummond (2001a), p. 309. See also Gleeson (1995), p. 122, Handsley (2001b), p. 191.

  153. 153.

    As Gleeson (1995) observes, very few other decision-makers are obliged, as a matter of routine, to state in public the reasons for all their decisions: p. 122.

  154. 154.

    Ibid.

  155. 155.

    See Perelman (1980), p. 143.

  156. 156.

    Moreover, the obligation to give reasons can promote the general acceptability of judicial decisions: see Gleeson (1995), p. 122, Handsley (2001b), p. 191.

  157. 157.

    In addition to these direct accountability consequences, reasons can facilitate review of the decision on appeal (Kirby (2003), p. 46) and make ‘transparent the different views held by members of the court’ (Le Sueur (2004), p. 90).

  158. 158.

    The particular content and form of ‘acceptable’ reasons can, for example, vary in length and in the matters included, can be individually or collectively written, and can involve dissents, pluralities or majorities.

  159. 159.

    This is particularly so given the minimal scope for reason-giving to conflict with the principles of judicial impartiality: see Rose (1999), p. 339.

  160. 160.

    For example, whereas in the past such decisions were generally available only for a fee, or through expensive reports, increasingly judgments are freely published directly online, whether on court websites or through institutions such as AustLII or BAILII.

  161. 161.

    This problem can be mitigated by careful writing. Kirby has argued that judges ‘should be able to produce accurate and readable summaries of important decisions that can be picked up and reported to the public’: Kirby (2003), p. 52.

  162. 162.

    Moreover, it can expose defects in the law such as ‘an anomaly or a clear injustice in its operation, or an impropriety in its administration’ that may otherwise be hidden, creating space for legal reform: Kitto (1992), p. 788.

  163. 163.

    Kitto (1992), p. 790.

  164. 164.

    Colbran (2003), p. 58, Gleeson (1979), p. 343.

  165. 165.

    This is in contrast to personal accountability mechanisms that seek to influence the primary decision-maker.

  166. 166.

    Arguably, the most appropriate means of reviewing judicial performance ‘is to be found within the court structure itself, in the ordinary appellate processes’: Gleeson (1979), p. 343.

  167. 167.

    There are, of course, cases where the judge has committed a ‘genuine’ error, whether through mistake, carelessness, incompetence, partiality or malice.

  168. 168.

    At a general level, such grounds of review may include: a failure to follow trial procedure; a consideration of irrelevant material or failure to consider relevant material; a violation of the principles of impartiality; a misapplication of legal principles; an unjustified departure from existing legal norms; or a failure to deal adequately with the evidence.

  169. 169.

    As Gleeson (1979) notes, the appellate court can use their published reasons, or comments made in court, to censure the trial judge: p. 343; see also Roach Anleu et al. (2014), pp. 633–5. See, eg, Were v Police [2003] SASC 116 [12]–[16].

  170. 170.

    Ibid.

  171. 171.

    As Kitto notes, the conscientious judge will ‘wish to be vulnerable’ in this way ‘partly from sheer honesty and partly because of the comfort it will give him to reflect that if he has gone wrong the damage is not irreparable’: Kitto (1992) p. 788.

  172. 172.

    Gleeson (1979), p. 343.

  173. 173.

    See Handsley (2001b), p. 183, Basten (1996), p. 48. Morabito (1994) argues that this risks creating a distortive systemic bias where that the wealthy may have a greater chance of obtaining a favourable result: p. 74.

  174. 174.

    Basten (1996), p. 48. This can also take indirect form, with appellate courts effectively deferring to trial judge assessments of ‘factual’ issues, even where a question of law is involved: see for example, Fox v Percy (2003) 214 CLR 118 [25].

  175. 175.

    Handsley argues that limits on the grounds of review means that appeals provide ‘only a fairly rarefied forum for addressing a limited range of matters’: Handsley (2001b), p. 191.

  176. 176.

    As Cappelletti (1989) notes, the doctrine of res judicata rests upon this desire for finality, recognising a need to put an end to litigation whether or not a judicial decision is right: p. 68.

  177. 177.

    This point can be illustrated by rate at which appeals from intermediate appellate courts allowed. For example, from July 2013 to June 2018, 151 of 263 appeals to the High Court of Australia were allowed (57%): High Court of Australia (2018), p. 22. Assuming that most of these appeals are from appeal courts, this suggests that ‘mistakes’ are not only being made, but are made frequently. Of course, a more realistic reflection is that such statistics highlight the extent to which legal minds may differ in construing and applying the law, with different judges legitimately making different choices.

  178. 178.

    Potas (2001), p. 105.

  179. 179.

    This interaction may take the form of post-hearing conferences, distribution of draft judgments and subsequent meeting to discuss various positions: see Sachs (2009), pp. 50–2, Paterson (1982), ch. 5.

  180. 180.

    See Heydon (2013).

  181. 181.

    It should be noted that while internal discourse may pose a substantial drain on the time of the judge, and require an increase to workload, the operation of the mechanisms can also act to minimise total judicial work as across the institution, both by minimising errors, and by more efficiently allocating judicial time.

  182. 182.

    See Lasser (2004), ch. 10.

  183. 183.

    Ambard v Attorney-General for Trinidad and Tobago [1936] AC 322, 335.

  184. 184.

    For example, the Latimer House Principles recognise ‘legitimate public criticism’ as a key ‘means of ensuring accountability’: Commonwealth Secretariat, (Latimer House) Principles on the Three Branches of Government (endorsed by the Commonwealth Heads of Government Meeting, 2003) v 2(b). See also Canadian Judicial Council, Commentaries on Judicial Conduct (1991), p. 68.

  185. 185.

    As Brennan notes, the silence of the judiciary in response to criticism ‘manifests the acceptance, indeed the encouragement of the right of the public critically to scrutinise that conduct’: Brennan (1979), p. 767.

  186. 186.

    As Potas observes, most judges ‘do not like to have their judgments publicly criticised for failing to apply the law correctly, nor do they like to have their decisions set aside by a superior court because of some avoidable error they have made’: Potas (2001), p. 104.

  187. 187.

    Shetreet (1985), p. 656. Kitto notes that every judge ‘worthy of the name recognises that he must take each man’s censure; he knows full well that as a Judge he is born to censure as the sparks fly upwards’: Kitto (1992), p. 790. A dominant theme in the comments of Australian judicial officers is an acceptance of criticism as ‘coming with the territory’: Mack et al. (2018), pp. 16–7.

  188. 188.

    As Gleeson notes, this imposes ‘a very heavy responsibility’ on those who criticise the judiciary: Gleeson (1979), p. 344.

  189. 189.

    Cappelletti characterises this as a possible clash between the values of ‘democratic accountability and judicial independence’: Cappelletti (1989), p. 83. Interview research conducted with Australian judicial officers found that some judicial officers ‘note … possible attention from the public or the media’ and remark on how it ‘can affect how [they] craft the language in their remarks and decisions’: Mack et al. (2018), pp. 25. However, ‘interviewees [were] quite firm in asserting that there is no change in the substance or content of decisions in response to perceived media attention or public pressure’: ibid., pp. 27.

  190. 190.

    As Kitto notes, ‘neither in preparing a judgment nor in retrospect may it weigh with him that the harvest he gleans is praise or blame, approval or scorn. He will reply to neither; he will defend himself not at all’: Kitto (1992) p. 790.

  191. 191.

    Shetreet (1985), p. 656.

  192. 192.

    Gleeson (1979), p. 344.

  193. 193.

    Ibid.

  194. 194.

    Shetreet (1986), p. 39, Shetreet (1976), pp. 179–200.

  195. 195.

    Mason (2005), p. 132, see generally Schulz (2010).

  196. 196.

    See Treaty on European Union (the ‘Maastricht Treaty on European Union’) as signed in Maastricht on 7 February 1992: https://europa.eu/european-union/sites/europaeu/files/docs/body/treaty_on_european_union_en.pdf.

  197. 197.

    See R (Miller) v The Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin). This decision was subsequently upheld by the UK Supreme Court in R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5.

  198. 198.

    Slack (2016).

  199. 199.

    Ibid. For discussion of the need for constraint see Shetreet (1986), p. 39.

  200. 200.

    Canadian Judicial Council, Commentaries on Judicial Conduct (1991), p. 68. The accepted position is that the ‘judge speaks but once on a given case and that is in the Reasons for Judgment’: ibid., p. 86. See also Shetreet (1976), p. 319. This inability to publicly respond can be justified on a number of grounds. It provides a powerful incentive to the judge to ensure that the written judgment is as comprehensive, persuasive and complete as possible. It aids legal certainty by ensuring that the textual authority is not undermined by comments made in a non-judicial or quasi-judicial capacity. Further, it can encourage public interest, inquiry and comment on the conduct of the judiciary, by making the act of passing public comment less intimidating.

  201. 201.

    Gleeson (1979), p. 344, Mack et al. (2018), pp. 17–24.

  202. 202.

    Gleeson (1979), p. 344, see also Mack et al. (2018), pp. 7–14.

  203. 203.

    See discussion above in Part V, Chapter 12.2.3.

  204. 204.

    Colbran describes it as the ‘price’ of self-governance: Colbran (2002) p. 249.

  205. 205.

    Russell (2001) suggests that in this context the potential tension between accountability and judicial independence becomes most pronounced, as ‘the liberal principle of judicial independence runs up against the democratic principle of accountability’: Russell (2001), p. 2.

  206. 206.

    Spigelman (2000b), p. 382. As Mohr and Contini note, financial accountability is a normal aspect of the functioning of justice systems: Mohr and Contini (2007), p. 2.

  207. 207.

    Spigelman (2002), p. 18.

  208. 208.

    As Spigelman notes, citizens are ‘are entitled to know whether the arms of government which they fund through their taxes are spending that money efficiently and effectively’: ibid., p. 19.

  209. 209.

    Ibid., p. 18. Spigelman notes that even the gathering and reporting of information on efficiency can create threats: ibid.

  210. 210.

    Drummond explains how the Australian government developed a system requiring federal courts to ‘sell’ a number of ‘disposals’ of disputes to the executive government: Drummond (2001b), p. 359.

  211. 211.

    Spigelman (2000b), p. 382.

  212. 212.

    Ibid., p. 381.

  213. 213.

    As Spigelman neatly argues, values of ‘truth, justice and fairness... are not necessarily compatible with the unbridled operation of market forces. At times the belief in the universal applicability of market forces, borders on monomania’: Spigelman (2000b), p. 382.

  214. 214.

    Drummond (2001b), p. 367.

  215. 215.

    Spigelman (2000b), p. 381. See also Drummond (2001b), p. 367.

  216. 216.

    Spigelman (2000b), p. 380. See also Spigelman (2002), p. 26. For discussion of the public good of judicial decision-making: see Genn (2010), pp. 16–20, Resnik (2004).

  217. 217.

    Spigelman (2000b), p. 380.

  218. 218.

    It is worth pointing out that there is a strong economic benefit to maintaining a ‘broadly based acceptance of the institutional legitimacy of the administration of justice’ that can be undermined by a short-term pursuit of ‘economic efficiency’: ibid.

  219. 219.

    On the push for performance standards generally: see Drummond (2001a), p. 313.

  220. 220.

    Drummond (2001b), p. 357.

  221. 221.

    Colbran (2002), p. 249. Mohr and Contini (2007), p. 3.

  222. 222.

    Colbran (2002), p. 238.

  223. 223.

    Ibid., p. 239. Colbran argues that such mechanisms provide a ‘comprehensive avenue for detection of weakness before they develop into matters warranting disciplinary procedures’: ibid., p. 248. See also Jennifer K Elek, David B Rottman and Brian L Cutler, ‘Judicial Performance Evaluation in the States: A Re-examination’ (2014) 98(1) Judicature 12.

  224. 224.

    Mohr and Contini (2007).

  225. 225.

    Spigelman (2002), p. 20.

  226. 226.

    For a more detailed examination of these practical and theoretical critiques: see McIntyre (2014).

  227. 227.

    Spigelman (2000b), pp. 380–1. Arguably, the articulation of the judicial function in this book provides two such criteria, namely (1) the effective and correct resolution of disputes; and (2) the responsive and effective governance by legal rules. These criteria do not, however, reduce to the kind of measures required by these ‘performance management’ systems of accountability.

  228. 228.

    Spigelman (2002), p. 25.

  229. 229.

    There is a real risk, as Drummond (2001b) notes, that the mechanisms can become a victim of the ‘universal’ (p. 364) managerial bias towards calculation: ‘[I]f something is difficult to measure, it is often treated as unimportant; if it is impossible to measure it is often treated as if it did not exist’: Drummond (2001b), p. 377.

  230. 230.

    See Kitto (1992), p. 790.

  231. 231.

    Ibid., pp. 790–1.

  232. 232.

    Spigelman (2002), p. 23.

  233. 233.

    As Spigelman notes, even in the case of reducing delays there are limits to what can be achieved without undermining higher order objectives: ibid., p. 23.

  234. 234.

    Spigelman (2000b), p. 381. See also Spigelman (2002), p. 24.

  235. 235.

    Spigelman (2000b), p. 381.

  236. 236.

    Ibid., pp. 381–2, Spigelman (2002), p. 24.

  237. 237.

    Mohr and Contini note how a narrow focus can lead to distorted measurement, giving the example of the Italian Pinto legislation where appeals to the European Court of Human Rights on the grounds of delay were reduced without reducing the delay itself: Mohr and Contini (2007), p. 35.

  238. 238.

    Ibid.

  239. 239.

    Spigelman gives a good example of the dangers of blind pursuit of performance indicators in a tale of a Soviet five-year plan, where a provincial party secretary promised to double the output of meat. He did so by slaughtering all the milk cows. He had not committed himself to a target for milk: Spigelman (2002), p. 27. See also Spigelman (2000b), p. 381.

  240. 240.

    Drummond (2001b), p. 368. Indeed, such performance-linked benefits, including salary increases and bonuses assessed and payable to judges have been held to be incompatible with judicial independence in Canada: R v Genereux (1992) 88 DLR (4th) 110 (Supreme Court of Canada); Reference Re Public Sector Pay Reduction Act (PEI) (1997) 150 DLR (4th) 577 (Supreme Court of Canada). See also Mohr and Contini (2007), p. 24, Drummond (2001b), p. 369.

  241. 241.

    It has even been argued that judges are not well suited to administering these forms of management accountability: Mohr and Contini (2007), p. 3.

  242. 242.

    Drummond argues that it is ‘no part of the court’s function to meet outcomes set by the executive government’: Drummond (2001b), p. 359.

  243. 243.

    Ibid., p. 360.

  244. 244.

    Moreover, it should be noted that there is tendency for these monitoring activities to become ‘ever more complex and fragmented and, therefore, costly’: Mohr and Contini (2007), p. 26.

  245. 245.

    Spigelman (2002), p. 23.

  246. 246.

    As Spigelman notes, the negative effects on public confidence can be profound: ibid.

  247. 247.

    Drummond (2001b), p. 367.

  248. 248.

    Many Australian courts are required to produce such reports for Parliament, which are later made available to the public: see Courts Administration Act 1993 (SA) ss 13–4; High Court of Australia Act 1979 (Cth) s 47(1).

  249. 249.

    Shetreet (1985), p. 656.

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McIntyre, J. (2019). Mechanisms of Accountability. In: The Judicial Function. Springer, Singapore. https://doi.org/10.1007/978-981-32-9115-7_14

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