Judicial education changes: judges need more support

Hansard: 7 June 2007 ASSEMBLY

Mr CLARK (Box Hill) — The Courts Legislation Amendment (Judicial Education and Other Matters) Bill makes a range of amendments to legislation governing different aspects of our court system. It establishes uniform provisions regarding judicial education at all levels of jurisdiction — the Supreme Court, the County Court, the Magistrates Court and VCAT (Victorian Civil and Administrative Tribunal). It gives responsibility for judicial education within each jurisdiction to the head of the jurisdiction — the Chief Justice of Victoria, the Chief Judge of the County Court, the Chief Magistrate and the VCAT president respectively.

It empowers the head of each jurisdiction to direct judges, masters, magistrates or tribunal members within their jurisdiction to take part in judicial education or training.

The bill clarifies the seniority of judges through the express recognition of their commissions of appointment. It provides for the resignation of judges prior to the compulsory retirement date, and it removes various stated anomalies in judicial pensions. It allows masters to constitute the Court of Appeal for procedural applications. The bill brings appeal rights from the County Court to the Court of Appeal into line with appeals from the Supreme Court, and it extends the sunset clause on the Koori Court division of the Children’s Court.

The opposition will not be opposing the bill, but it has some reservations about a particular aspect of it relating to judicial education.

There are also some further matters which we believe need to be clarified during the course of debate.

Perhaps the most far reaching of the provisions in the bill are those relating to judicial education. They build on legislation passed by this Parliament in 2001 that established the Judicial College of Victoria. At that time the opposition supported the bill to establish the judicial college, and one of my learned predecessors as shadow Attorney-General, Dr Dean, expressed three reasons in support of a judicial college.

He said, firstly, that it was important that a judge’s knowledge of life be as broad as possible; secondly, that it was important that there was a perception in the community that judges were concerned about their own education and about ensuring that they had a broad knowledge; and thirdly, given that people come from a variety of backgrounds and have a variety of experiences, that it was important to ensure that all judges were able to receive education and professional development in those areas in which they may lack experience.

Since the judicial college legislation was passed the Judicial College of Victoria has in fact been established and is in operation. It is perhaps worth making the point that there is a national judicial college as well, but Victoria has set out on a path of having a separate judicial college, while also cooperating with the national college.

The Judicial College of Victoria web page entitled ‘About the college’ gives an overview of the college’s role. With perhaps a little bit of puffery, it proclaims that ‘The college is a leader in judicial education and professional development’. It highlights the following:

Workshops and seminars in small groups encouraging discussion.

JOIN (Judicial Officers Information Network) — gone are the days of ploughing through dusty books; now Victorian judicial officers access all necessary information electronically. JOIN is a one-stop judicial stop.
I think that is perhaps stretching the limits of credibility, but clearly an intranet available to judicial officers has the potential to be a very beneficial tool indeed. The web page further highlights the following:

Visits and field trips to correctional and forensic facilities, forensic services, drug rehabilitation (Odyssey House) and Urban Seed (tour of CBD back alleys focusing on homelessness, drugs and gambling) expand experience and knowledge.

Two-year induction framework for new appointees to ease the transition from legal practice to bench.
In the latest annual report of the judicial college, Her Honour Justice Marilyn Warren, the Chief Justice of Victoria and chair of the Judicial College of Victoria, commented:

It is gratifying to note that there is widespread support for professional development amongst Victorian judicial officers. The implementation of these national initiatives will enhance the capacity of Victorian judicial officers to carry out their roles and, in doing so, build the community’s confidence in the administration of justice.

While Her Honour did not expressly refer to this matter in that report, nor indeed, as far as I am aware, has she raised the matter publicly elsewhere, it seems capable of being inferred from what she has said that a progression towards making continuing professional education for judicial officers mandatory is one of the extensions of the current regime towards which Her Honour has been leaning.

Certainly substantial benefits can be achieved through a judicial college, and there are many challenges facing our court system today and many pressures which our judiciary is under. Those pressures may to some extent — but only to some extent — be assisted by the services that may be provided to judges through a judicial college.

It is fair to say that there is a widespread perception in the community that the sentences delivered by our courts are too lenient, that they do not reflect community views as to the gravity of the offences concerned and that they are failing to exercise an adequate deterrent effect or to take offenders out of circulation, thereby removing their capacity to cause further harm. I think there has been justifiable community concern that lenient sentences, whether through the court system or through what happens after sentences have been handed down, have resulted in offenders being released back into the community and then going on to reoffend when they may well not have done so had they continued to be kept behind bars. That is certainly a very strong concern coming from the community about the judicial system.

In similar terms the rapid proliferation of a range of antisocial activities, ranging from graffiti through to street violence, and the manner in which the judicial system responds to those challenges are also causing considerable concern. I am very cautious about commenting on sentences in particular cases, but I refer to one case with which I am familiar where widespread graffiti damage was caused by one offender. The damage was estimated to be worth in excess of $700 000, and from memory the offender was sentenced to something like 300 hours of community service, which does not seem to provide a clear signal of the community’s disapproval of and determination to deter that sort of activity, which is not only costly and distressing in itself but has the potential to promote a general atmosphere of disrespect for the law.

This is one set of challenges that the judiciary is facing.

I think the primary responsibility for it falls on the government and on the Parliament, in terms of setting the legislative regime which the judiciary is to administer, but the judicial college has the potential to play a role in ensuring at least consistency of policy and in assisting those judges who are appointed to the bench without a background of criminal law experience to pick up on details of the regime that applies in the criminal law.

Another major challenge faced by the court system at present is delays. There is a growing backlog of cases in Victoria. The Productivity Commission’s government services report of 2007 identified that the Supreme Court in 2007 had the greatest backlog of any Supreme Court in the nation. Overall our court system is lagging; it has some of the worst performance figures in the nation in terms of delays.

Here there is a tension, because clearly to the extent to which judges are spending time within a judicial college they are not available to hear cases and reduce delays; on the other hand if they are dragged away from essential judicial development because of attempts to reduce the backlogs then their long-term professional development and their capacity to perform as judges will be undermined.

There are also problems within the court system in relation to bail shopping, which has been highlighted in the media recently. The rules relating to the hearing of repeated bail applications by a single alleged offender have not been properly enforced. In my view the buck for that primarily stops with the administrative systems that back up the rules that are to apply, but it would certainly be helpful if judicial education made clear what the procedures are so that a magistrate could pick up when somebody was bail shopping when they appeared before him or her.

The chief justice gave a speech on 22 May entitled State of the Victorian Judicature. I believe this was the first time such a statement had been delivered by the chief justice in Victoria, although such statements have been quite common in other jurisdictions. It was a very carefully crafted speech by Her Honour which avoided offending sensitivities but at the same time managed to make some very clear points about Her Honour’s concerns about various aspects of the court system in Victoria as it stands at present and some of the challenges that impact on judicial education and on delays. Her Honour made it clear that:

Victoria must be able to match up with its interstate and interjurisdictional comparators.
She said that as far as courts are concerned:

Victorian citizens should be confident that serious criminal trials and appeals will be disposed of by prompt, energetic and sharp judges — not slow, tired and worn-out judges … Victorian business and litigators should be able to bring their cases to Victorian courts to be disposed of in the same way.

There should be no need to resort to other jurisdictions save for jurisdictional reasons.
Her Honour was clearly signalling some of the pressures that the court system and judges are under at present. She went on to talk about appropriate delay times within the court system; the number of judges required; and the impact of delays, work volume, timeliness and judge health. She also referred to the consequences of the Charter of Human Rights and Responsibilities Act 2006, which, as she said, would:

commence a new jurisdiction for Victorian courts and tribunals, in particular, the Supreme Court and we are yet to know the impact on courts’ workloads.

That is clearly going to affect the role of the judicial college, with yet another burden that the college is going to have to cope with and try to assist judges to cope with.

In her address Her Honour also specifically touched on the role of the judicial college itself. She spoke about Victoria having the benefit of the judicial college in meeting local education needs and the National Judicial College of Australia to meet needs that could only be met on a national scale. She then went on to refer to some of the expectations of the college. She said:

There is an expectation by the heads of the Victorian courts and tribunals that all judges, magistrates and tribunal members will actively participate in ongoing judicial education. There is now broad acceptance that all judicial officers should have at least five days provided per year for judicial education. This time is over and above judge time and viewed as a minimum.

The remaining aspect of judicial education is to observe that adequate provision comes at a cost which has been recognised by government. As judicial education expands in Victoria, in all likelihood so will its cost.
There is clearly a role for a judicial college. What this bill does in particular is enact uniform provisions for judicial education at all levels of jurisdiction, and in particular it enables the head of each jurisdiction to give directions to judicial officers within that jurisdiction as to undergoing ongoing professional development or continuing education and training activity. That is contained, for example, in relation to the Supreme Court, in proposed section 28A(3), which says:

In discharging his or her responsibility under subsection (2) the Chief Justice may direct —

(a) all judicial officers; or

(b) a specified class of judicial officer; or

(c) a specified judicial officer —

to participate in a specified professional development or continuing education and training activity.
It is this aspect that causes the Liberal Party some concern. It is not concern in the sense of executive or other interference with judicial independence, because it is clearly the head of the jurisdiction who is given this power to direct. However, there is concern about the potential for the power not to be exercised in the best possible way by cutting across the individual responsibilities and roles of judges.

It places a serious responsibility on the head of each jurisdiction regarding the exercise of those powers.

Linked to this is the fact that while the Judicial College of Victoria is under the control of a board that is composed of a majority of judges, because of necessity the college is very closely linked to the Department of Justice at an administrative level. This is set out on page 4 of Shaping the Horizon — Strategic Plan Judicial College of Victoria 2007-2010. It is on the website of the college and was published in March 2007. It says:

Linked to the Department of Justice for administrative, infrastructure and resource purposes, the college is committed to ensuring that the content of its education activities, through the oversight of the college board and internal judicial committee structures, continue to meet the education and professional development needs of Victorian judicial officers.

As with the court system — as the chief justice also identified in her speech about the state of the judicature — the Department of Justice is heavily involved at an administrative level in the college. It is very important that that involvement does not extend beyond administration and that we do not have the Department of Justice exercising through the backdoor undue interference and imposing restrictions on the autonomy and independence of the court.

To put it bluntly, a reservation has been expressed to me that senior judges do not want to be, and should not be, lectured by relatively junior bureaucrats or academics as to how they should conduct their roles. In other words, the Judicial College needs to have a high calibre of personnel who understand the role of judges and can add real value to that role.
It has also been put to me that the chief justice traditionally has been the ‘first amongst equals’ within their jurisdiction — there have been questions about whether or not the ‘first amongst equals’ role is being extended unjustifiably in the capacity of the heads of the jurisdiction to direct judges and other judicial officers as to what they are to do. Already the heads of jurisdiction exercise considerable responsibilities in assigning judges to lists and other similar matters regarding what other judges do.

I repeat: in exercising the powers being conferred on them by this bill the heads of jurisdiction need to be careful to make sure that those powers are exercised properly and in particular that the autonomy, seniority and maturity that are, or at least should be, possessed by various judges and other judicial officers are respected.

In this bill there are no consequences or sanctions specified as to what happens if a judge simply refuses to comply with a direction given by a head of jurisdiction. It may be said that that should be unnecessary and that judges can be expected to comply with such directions. But I think that the only available sanctions will be those relating to the dismissal of judges through the parliamentary process, which is something we hope would never be reached.

I turn to the provisions relating to judicial pensions.

I refer to the references to this subject which are made in the statement of compatibility under the Charter of Human Rights and Responsibilities Act as tabled by the Attorney-General. The references illustrate the ongoing difficulties that the government, public servants and everybody else have with the highly prescriptive, procedurally based and dogmatic provisions of the charter. There is an issue identified in relation to these pension provisions as to whether or not they discriminate on the basis of age. The statement of compatibility says:

This amendment positively engages section 8(2) of the charter. It rectifies a provision which discriminates on the basis of age and is incompatible with the charter. The amendment is therefore compatible with the charter.
However, the very essence of a pension or a superannuation scheme is in fact a discrimination on the basis of age.

One only qualifies for a pension or for superannuation if one reaches a particular age. It is not a bad thing; it is the whole objective of a pension or a superannuation scheme. But this example shows the nonsense of trying to apply the charter in this context and the way in which the statement of compatibility does this. It claims that the amendment is a good thing because it removes discrimination on the basis of age, but we are in context where discrimination on the basis of age is the essence of the provision.

As well, it is the methodology of the department and the government to go through legislation and seek to identify every possible impact on the charter. However, section 24(1) of the Charter of Human Rights and Responsibilities Act says:

A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.
If we are going to identify potential impacts on the charter, I would have thought that the Judicial College provisions impact on section 24 (1), yet that has not been addressed in the statement of compatibility.

The pension provisions themselves are quite complex. One of them relates to the spouses of judges, and the other relates to judges who resign prior to the compulsory retirement age. I thank the departmental officers very much for the detailed explanation they provided to the opposition in relation to the operation of the reversionary judicial pension provision. Its explanation was that this amendment addresses an apparent anomaly in the drafting of the Constitution Act 1975.

Currently spouses of judges appointed before the age of 60 who die in office or after retirement are entitled to a reversionary pension. However, spouses of judges who are appointed after the age of 60 are entitled to a reversionary pension if the judge dies in office but have no such entitlement where the judge dies after retirement. The amendment seeks to address this anomaly and provide the same entitlements regardless of the age of the judge at the time of appointment.

In relation to the other alteration to the pension provision, this applies where a person has resigned as a judge or other judicial officer before the compulsory retirement age and then after resignation but before attaining the age of 65 becomes permanently disabled. They will be entitled to a pension as they would have been if they had become permanently disabled while they were continuing as a judge.

I certainly hope we get some explanation from the government as to the logic of this provision, because what it seems to be saying is that a person can resign as a judge yet continue to be entitled to a judicial pension if they become disabled before the age of 65, as if they had continued as a judge. I am struggling to understand how it is that, having resigned, they can continue to attract the entitlements of someone who has continued in office as a judge. This provision, like the provisions relating to resignation, brings into play the increasing practice of judges to resign from the bench ahead of the compulsory retirement age.
It has been said to me that, if a person accepts judicial appointment and then finds that that appointment does not suit them, they should be entitled to accept that they have made an error of judgement and resign and resume a more productive life in the field that suits them. Obviously there will also be circumstances where a person’s situation in life — either their own or within their family — changes, and for that reason they need to resign ahead of the compulsory retirement age. However, it seems to me that it is a desirable thing, if at all possible, that people who accept appointment to the bench continue on the bench and in particular that, having resigned from the bench, there be a minimum of occasions when those people return to active practice as barristers. It opens up issues about judicial independence and referral.

As has been said to me by one senior judicial officer, it makes it very difficult when a former colleague appears before them as an advocate. I know that the Victorian Bar Council has rules restricting the ability of people who have resigned as judges to appear as barristers before the relevant court within a certain time after they have resigned. I think that is very important. I simply sound the cautionary note that I think resignations, particularly in the context of a return to active practice, should be avoided where possible. Other provisions in this bill clarify the order of seniority of judges. Those provisions are unexceptional.

A final provision that I will specifically refer to relates to the children’s division of the Koori Court. The establishment of this division was supported by the opposition at the time the legislation came through the Parliament in 2004. It was established on a trial basis, and that trial is continuing. We understand that there is to be a formal evaluation.

The Attorney-General has indicated to the Public Accounts and Estimates Committee that he believes the trial has worked satisfactorily so far, but he wishes to extend the trial for a further period to allow for the formal evaluation. Certainly we on this side of the house will look forward to that evaluation report and to other feedback that we are able to obtain as to how the Koori Court has performed.

Overall, as I said at the outset, the opposition does not oppose the bill. But we have some reservations, particularly about the compulsory judicial education powers that have been vested in the heads of jurisdiction. We also seek some further information about the merits of the provision that allows disability pensions to be paid to former judicial officers in the circumstances that I have outlined.