Judges, like all other citizens, are subject to the law, but the need to protect judicial independence in the interests of the whole community means that, in respect of their judicial conduct, they cannot be subject to direct discipline by anyone else, except in the extreme cases of proved misbehaviour or incapacity. In those circumstances, and in those only, a judge may be removed from office by the Governor-General upon a request from both Houses of the Parliament.
Judges are accountable through the public nature of their work, the requirement that they give reasons for their decisions and the scrutiny of their decisions on appeal. (With few exceptions, all Family Court hearings are open to the public and can be reported in the news media, and judgments of the Court are available to the public through the internet (anonymised to comply with the requirements of section 121 of the Family Law Act 1975 (the Act) which does not permit identification of parties or witnesses.)
The Act was amended by the Courts Legislation Amendment (Judicial Complaints) Act 2012 (Cth) to assist the Chief Justice to deal with complaints about judges, to provide immunity from suit for the Chief Justice as well as participants assisting the Chief Justice in the complaints handling process, and to exclude from the operation of the Freedom of Information Act 1982 (Cth) documents of a court arising in the context of consideration and handling of a complaint about a judge.
The complaints procedure does not, and cannot, provide a mechanism for disciplining a judge. It does, however, offer a process by which complaints by a member of the public about judicial conduct can be brought to the attention of the Chief Justice and where appropriate the judge concerned, and it provides an opportunity for a complaint to be dealt with in an appropriate manner. It should be noted that in some cases a considered response cannot be provided until the proceeding giving rise to the complaint has been finalised.
The Chief Justice may decide whether or not to handle a complaint about the conduct of a judge of the Family Court, and may then dismiss the complaint, handle the complaint or arrange for another complaint handler (including the Deputy Chief Justice) to handle, or assist to handle, the complaint. A person who is authorised by the Chief Justice to handle a complaint will be of appropriate seniority to do so.
For constitutional reasons, the participation of a judge in responding to a complaint is entirely voluntary. Nevertheless, it is accepted that a procedure for complaints can provide valuable feedback to the Court and to its judges. It can also provide the Court with opportunities to explain the nature of its work, correct misunderstandings where they have occurred and, if it should fall short of judicial standards, to improve the performance of the Court.
Unless otherwise stated, all information and documents relating to the preliminary assessment of a complaint, a referral of a complaint to the Attorney-General, an investigation of a complaint by a Conduct Committee (see below for an explanation of the formation of a Conduct Committee) and any other dealing with a complaint in the Court is confidential. To protect that confidentiality access to any documents that relate to a complaint being dealt with in the Court is not available under the Freedom of Information Act 1982.
Complaints about delay
A party may express concerns or complaints about delay in the delivery of a judgment. In such a case a party can send a letter to the president of the bar association or the law society in the State or Territory in which the case was heard and request that the president take up the matter with the Chief Justice. The president will then convey the concern or complaint to the Chief Justice without identifying which party complained. The Chief Justice will look into the matter and, if appropriate, take it up with the judge concerned. Complaints of this nature can also be made directly by letter addressed to the Chief Justice.
Complaints about cases that could be dealt with on appeal
Parties who are concerned about the result of a case or about any other matter in connection with the case that is capable of being raised in an appeal should consider whether or not to appeal the decision. It should be noted that time limits apply in respect of appeals.
If a complaint is received about matters that are, or were, capable of being dealt with by an appeal or any other application to a court, the Chief Justice will advise the person who has made the complaint that the matter cannot be dealt with under the complaints procedure.
Complaints about judicial conduct
How complaints are made
A complaint about judicial conduct must be made in writing addressed to the Chief Justice. It must identify the complainant, the judge about whom the complaint is made and the judicial conduct about which the complaint is made. Judicial conduct, for the purposes of this procedure, means conduct of a judge in court or in connection with a case in the Family Court, or in connection with the performance of a judge's judicial functions.
How complaints are handled
The Chief Justice, or an authorised complaint handler, will not handle a complaint (otherwise than summarily to dismiss it) unless he/she believes that:
- circumstances giving rise to the complaint may, if substantiated, justify consideration of removal of a judge in accordance with paragraph 72 (ii) of the Constitution; or
- circumstances giving rise to the complaint may, if substantiated, adversely affect performance of judicial or official duties by the judge, or have capacity adversely to affect the reputation of the Court of which the judge is a member.
The Chief Justice, or an authorised complaint handler, will not deal with a complaint (otherwise than summarily to dismiss it) about conduct of a judge occurring before the judge was appointed to office unless the matter, if substantiated, could justify parliamentary consideration of removal.
Complaints alleging criminal conduct will generally be referred to the Australian Federal Police in the first instance. The Chief Justice or Conduct Committee may adjourn consideration of any matter if it is being considered by a court or another body.
On receiving a complaint, the Chief Justice will make a preliminary assessment of the complaint and decide whether to:
- summarily dismiss the complaint;
- deal with the complaint without establishing a Conduct Committee;
- establish a Conduct Committee; or
- refer the complaint to the Attorney-General.
The Chief Justice will dismiss the complaint if:
- the complaint is frivolous, vexatious or not in good faith;
- the complaint is misconceived;
- the subject matter of the complaint is trivial;
- the matter complained about occurred at too remote a time to justify further consideration;
- another means of redress is available to the complainant;
- the complaint relates to the exercise of a judicial function that was capable of appeal or review; or
- the person complained about is no longer a judge.
The Chief Justice will notify the complainant and judge concerned (where appropriate) if a complaint is dismissed.
The Chief Justice may deal with a complaint in discussion with the judge concerned.
In dealing with the complaint, the Chief Justice may take any other action he/she thinks appropriate in discharging the effective and efficient management of the administration of the Court. This includes measures he/she believes are reasonably necessary to maintain public confidence in the Court, including, but not limited to, temporarily restricting the judge to non-sitting duties.
The Chief Justice will notify the complainant and judge concerned (where appropriate) where a complaint is resolved to the Chief Justice's satisfaction.
Referral of a complaint to the Attorney-General
The Chief Justice will refer a complaint directly to the Attorney-General if he/she:
- has consulted the judge about a complaint;
- is satisfied the matter to which the complaint relates occurred; and
- is satisfied that the matter is sufficiently serious to warrant parliamentary consideration of removal from office.
The Chief Justice will notify the complainant and the judge concerned about this step.
The Attorney-General may, in consultation with the Chief Justice, bring the complaint to the attention of the Parliament.
The Parliament may decide to establish a Parliamentary Commission under the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012 to inquire into specified allegations of misbehaviour or incapacity in relation to the judge.
Establishment and function of a Conduct Committee
On receiving a complaint about judicial conduct or incapacity the Chief Justice may establish a Conduct Committee to investigate and handle the complaint.
The functions of a Committee will be to investigate the complaint and report to the Chief Justice on its investigation. If the Committee recommends parliamentary consideration of removal on the grounds of proved misbehaviour or incapacity, the Chief Justice may refer the complaint to the Attorney-General.
The composition of the Committee may be determined on referral of a complaint to the Committee by the Chief Justice.
The Chief Justice may authorise the Committee, in writing, to handle the complaint as a body of complaint handlers.
A Committee will consist of three nominees of the Chief Justice and may include:
- another current senior member of the Court, a retired judge of the Court or a retired judge of another superior court;
- generally, nominees will be of an equivalent or higher seniority to the judge concerned.
Another head of Commonwealth jurisdiction may be nominated as a member of a Conduct Committee.
Following a referral by the Chief Justice, the Conduct Committee will investigate the complaint to determine whether it is substantiated.
A Conduct Committee may undertake such investigations into the complaint as it considers appropriate with a view to conducting the investigation as quickly as proper consideration of the matter permits. Procedural fairness will be afforded to a judge who is the subject of an investigation.
A Conduct Committee may hold hearings and in doing so will:
- afford the judge the opportunity to address the Conduct Committee, without compelling his/her attendance at a hearing;
- allow the judge to be represented by a legal practitioner;
- provide the judge with a reasonable opportunity to comment on any proposed report to be made by the Committee; and
- provide a copy of the report to the judge and keep the judge informed of any outcome.
No adverse inference can be drawn by a Committee should a judge choose not to attend a hearing or, if he/she does, to decline to answer questions that are asked.
Report of the Committee
On completion of the investigation and hearing, the Conduct Committee will report to the Chief Justice on the results of its investigation of the complaint.
The Chief Justice retains discretion to seek a further report from the Committee or convene another Conduct Committee to re-examine an issue or consider new issues.
The Conduct Committee will be assisted by officers of the Court.
If the Chief Justice believes that a judge may have an impairment that affects the discharge of his or her judicial duties, the Chief Justice may convene a Conduct Committee to investigate that question. The Conduct Committee, if it suspects that a judge is physically or mentally unfit to exercise the functions of a judicial office, may request the judge to undergo a medical or psychological examination.
The judge may not be compelled to undertake such an examination, and no adverse inference can be drawn if the judge refuses.
Outcomes of investigation
The Conduct Committee will recommend that a complaint be dismissed if it concludes that the complaint has not been substantiated or if any of the grounds on which the Chief Justice may summarily dismiss complaints is found to apply.
If the complaint is not dismissed, the Committee may conclude that the matter:
- could justify parliamentary consideration of removal from office;
- does not justify parliamentary consideration of removal from office, but may affect or have affected the performance of the judge's duties; or
- does not justify parliamentary consideration of removal from office but, nevertheless, adversely affects the reputation of the judiciary.
If the Committee decides a complaint has been substantiated, it will send a report to the Chief Justice setting out its conclusions and a recommendation as to what steps might be taken to deal with the complaint, including training, to assist the Chief Justice in discussing the complaint with the judge concerned. A copy of the report will be provided to the judge concerned.
It is a matter for the Chief Justice whether to act on the Committee's advice.
The Conduct Committee will cease dealing with a complaint if the judge ceases to hold office for any reason.
The Chief Justice will notify the complainant of the outcome of the Conduct Committee's investigation.