Judicial commission needed to help judges’ welfare

Chris Merritt                 11 March 2021

Published in the Australian Newspaper

The timing of the Australian Law Reform Commission’s inquiry into judicial bias could not have been better.

It was unveiled in September last year, just a few weeks before the body of judge Guy Andrew was found in bushland outside Brisbane.

Andrew was a judge of the Federal Circuit Court who had been the only judge of that court in Townsville. His story is tragic. But it has lessons for the future.

On one level, the story of this judge concerns a clear case of judicial bias. But on another level, it is an argument for a greater focus on judicial welfare.

Andrew joined the bench in March 2019, and was found dead outside Brisbane in October last year after he was moved from Townsville to undergo counselling. He was moved after his conduct during a family law case known as Adacot & Sowle was criticised by an appeal bench of the Family Court.

The appeal court overturned his original decision and ordered a retrial because of an extraordinary case of apprehended bias.

But in the light of subsequent events, Andrew’s conduct can be characterised in a different way: it was also a strikingly clear sign that something was seriously wrong with the judge — something that was more fundamental than bias.

The unanimous judgment of the appeal bench of the Family Court contains extracts of the transcript of the original decision that cover 17 pages.

They show the judge had engaged in extended verbal jousting with lawyers for one of the parties. His conduct was described by the appeal bench as “cruel, insulting, humiliating and rude”.

In September, the reasons published by the appeal bench had been reported widely in the media. One month later, the judge was dead.

I have no criticism of the appeal court or of the media. They were both doing their jobs. They both had duties to perform and they did so.

My criticism is reserved for an institutional gap — the absence of a federal judicial commission — that could have led to a different outcome.

There might have been another way of addressing not just bias, but the welfare of a new judge who was isolated and in need of help.

Andrew had been the subject of two complaints. If a federal judicial commission had been in place at that time, consider what might have happened.

He had been on the bench only since March 2019. A federal judicial commission, if modelled on the NSW commission, would have functions that include mentoring and judicial education.

Judges, of course, already do what they can to help each other. But they are judges first and mentors second.

An important institution needs to have institutional support for the welfare of its key people, particularly those who are isolated from their fellow judges. Hopefully, the government’s design for its promised federal judicial commission will include such a function.

The second point is this: a federal judicial commission might have been able to address concerns about the judge’s conduct and wellbeing before they reached the point where there was a need for an appeal and a retrial.

I am aware of two instances where judicial officers in NSW have resigned and left the bench quickly after being informed that aspects of their conduct were to be examined by a conduct division of the judicial commission.

An adverse report by a conduct division is the first step in the process of removing a judge from the bench.

That mechanism, which protects litigants, is only possible because conduct divisions are required to abandon their inquiries once a judicial officer leaves the bench.

The downside of this approach — and it is a downside — is that it deprives complainants of the satisfaction of seeing their complaint upheld.

However, it is self-evident that it is more important to protect all future litigants as quickly as possible from judicial officers whose conduct or capacities are no longer of the required standard.

The third point is this. The appeal bench of the Family Court clearly reached the correct decision when it ordered a new trial. But it was only able to do so, in my view, after reading down the rule that means litigants waive their right to complain about bias if they fail to raise the issue when it becomes apparent during the trial.

There was no application during the trial for Andrew to recuse himself — to disqualify himself from the matter. The appeal court, however, unanimously pointed to the fact that one of the lawyers who had been bullied had reminded the judge that he had described the lawyer as a disgrace.

In light of that and the whole of the judge’s remarks, the appeal court said it doubted, even if the offensive remarks had been raised with the judge, whether “it would have afforded his Honour the opportunity to correct the impression those remarks had made”.

This looks like a strained, but necessary, approach aimed at avoiding the rule that would otherwise have meant it would not be possible to argue that the judge’s decision was biased — which it most certainly was.

Why not simply abandon the rule that means the right to complain about a biased judge can be waived?

The rule against bias is a fundamental pillar of natural justice. If it can be waived, one of the basic features of justice can be compromised. That cannot be right.

This article is based on a talk delivered last week at a seminar on judicial bias hosted by the Australian Law Reform Commission and the Australian Academy of Law