Oo, those awful judges

The curmudeonly Edmund Wilson in 'Oo, Those Awful Orcs' (1956) offered a slapdown - presumably unpersuasive to Tolkien fans - of The Lord of the Rings. 

Orcs are less scary than 'judicial activists', assailed in 'Who Makes The Law? Reining in the Supreme Court' by Roger Partridge (The NZ Initiative) ... 'a Wellington-based think tank supported primarily by major New Zealand businesses'. 

The 40 something page polemic echoes traditional claims in Australia and elsewhere during the 1980s about the perniciousness of 'activist', 'unaccountable', 'unrepresentative' judges, explored for example in Michael Kirby, 'Judicial Activism' (Hamlyn Lectures, 2004) and 'Judicial activism: power without responsibility? No, appropriate activism conforming to duty' (2006) 30(2) Melbourne University Law Review 576 or Dyson Heydon, 'Judicial Activism and the Death of the Rule of Law' (2004) 10 Otago Law Review 493. 

'Who Makes The Law' states that

Recent decisions from New Zealand’s Supreme Court have sparked widespread alarm. They show a court that has misunderstood its role and overstepped its bounds. 

The Court’s approach raises a very serious question for voters: Just who makes the law in New Zealand? Is it democratically elected politicians or unaccountable judges? At the heart of our legal system is a delicate balance of power between the three branches of government: Parliament, the courts and the executive. This balance is anchored in the idea of the ‘separation of powers’. This idea assigns distinct responsibilities to each branch. 

The role of judges is primarily backward-looking. It is to adjudicate historical disputes between parties about their existing legal rights and obligations. Judges do this by applying the law as it stood when the dispute arose to the facts agreed by the parties or found by the court. In contrast, Parliament’s role is forward-looking. The legislature is responsible for making new laws and amending existing ones to shape our legal commitments for the future. In our legal pecking order, Parliament is also ‘sovereign’ or ‘supreme’, sitting above even the Supreme Court. When each branch of government stays in its lane, the country’s constitutional machinery operates smoothly. But when these boundaries are crossed, the engine of government begins to falter. 

In recent cases, the Supreme Court has been actively stepping out of its lane, blurring the traditional separation between the roles of judges and Parliament. This shift represents a significant departure from the Court’s proper constitutional function. 

The Supreme Court’s overreach is having serious consequences. By mixing judging and lawmaking, the Court has strayed into shaping policy. This is properly the role of Parliament. Because judges lack the political accountability of politicians, the Court’s approach undermines the democratic legitimacy of the law. 

The Court’s approach has also made the law more uncertain and unpredictable. As the Court reinterprets legislation and reshapes common law principles, individuals and businesses can no longer rely on clear statutory language or stable precedents. Yet, certainty and predictability are fundamental requirements of what lawyers call ‘the rule of law’. 

The Supreme Court’s departure from these fundamental principles shows up in two key areas. First, the Court has adopted a loose approach to interpreting laws passed by Parliament. Increasingly, it is stretching or even ignoring clear statutory language. Effectively, the Court has granted itself the power to rewrite legislation it does not like. This oversteps Parliament’s rightful role. Second, the Supreme Court has changed how it handles the ‘common law’. Common law is the body of rules judges have made through court rulings over centuries. However, the Supreme Court now acts more like Parliament in this area. It has dropped the traditional approach of gradually adjusting the common law to fix mistakes or handle novel situations. Instead, the Court favours a radical new approach of reshaping common law rules to match its views of today’s ‘social values’. 

The Supreme Court’s ruling in the ‘three strikes’ case of Fitzgerald shows the first of these two problems. Regardless of what one thinks of the ‘three strikes’ law, it is obvious to any independent observer that the Court rewrote clear statutory language to avoid what it saw as a clash with the New Zealand Bill of Rights Act 1990. 

The Supreme Court’s decision in the Peter Ellis case is a good example of the second problem. The Ellis case had no Māori link. Yet, the Court took it upon itself to consider tikanga Māori in deciding that Ellis’s appeal against his convictions could carry on despite his death. This decision overturned longstanding rules for recognising tikanga as law. And it did so without providing a clear new framework. This has created a legal vacuum undermining the certainty and consistency required by the rule of law. 

The Ellis decision shows the problem with a Court that sees its role as ‘developing’ the law to reflect changing societal values. At the time, Parliament had asked the Law Commission to study tikanga’s role in our legal system. By rushing ahead, the Supreme Court sidestepped this careful, democratic process. There could hardly be a clearer example of a court overstepping its bounds – and with unfortunate consequences. 

The Supreme Court’s overreach challenges the proper constitutional balance between the judicial and legislative branches. If left unchecked, it will turn the judiciary into a powerful policymaking body, unaccountable to voters. This would represent a fundamental shift in how we run our country, one that Parliament has not sanctioned and the public has not approved. 

As the highest lawmaking body, Parliament needs to act. It must reassert its sovereignty by redrawing the lines that hold up our way of governing. To address these concerns, this report proposes five options to restore the balance to our legal system. 

First, Parliament could use targeted legislation to clarify what the law means. It could also overturn the Court’s worst decisions, misinterpreting the law. This has been done before. Not long ago, Parliament passed legislation under urgency to reverse the effect of the Supreme Court’s decision regarding the Child Protection (Child Sex Offender Registration) Act 2016. It is not surprising that the current Government is thinking about taking this course in response to troubling court rulings on the Marine and Coastal Area Act 2011. This shows how timely and practical this recommendation is. 

Second, Parliament could change the Senior Courts Act 2016 to set out more clearly what it means by the ‘rule of law’. Setting out a narrow or ‘formal’ meaning of the rule of law would help restrain the courts from judicial overreach. 

Third, Parliament could change the Legislation Act 2019 to include tighter rules for the courts when interpreting statutes. These changes would rein in the judiciary’s loose approach to interpreting Parliament’s words. They would require judges to stick more closely to the text and purpose of legislation passed by Parliament. 

Fourth, Parliament could consider amending or repealing section 6 of the New Zealand Bill of Rights Act 1990. The courts have used this section to justify big shifts from clear statutory language. Fixing this could help stop judges from rewriting laws. 

Finally, changes could be introduced to how senior appellate judges are selected. New criteria could favour candidates who show judicial restraint and respect for Parliament. Parliament setting fixed terms for Supreme Court judges could also help. These changes could help guard against our most senior judges gaining an exaggerated view of their role. 

These options give Parliament several ways of tackling judicial overreach. None of them threaten judicial independence or the rule of law. Instead, they aim to protect these fundamental values. They will help make sure the courts stay within their proper bounds. When the judiciary oversteps its role and takes over Parliament’s job, it harms the foundations of the rule of law it is meant to uphold. 

Parliament reasserting its rightful place will strengthen the backbone of our democracy. It leaves the courts to play their key role in settling rights and dealing out justice within the framework of laws made by Parliament. This ensures courts continue to protect rights in specific cases. But the wider choices about the scope and balance of rights stay with elected politicians answerable to voters. 

Constitutional change tends to be slow and thoughtful. However, the urgency of the situation means Parliament must act quickly and decisively. It must stop the current drift towards ‘judicial supremacy’. 

The Supreme Court’s recent decisions have raised alarm across the legal and political spectrum. Public trust in the impartiality and legitimacy of the courts is at stake. By taking the measures outlined in this report, Parliament could start to address these concerns and restore the proper balance. 

The alternative is a slow but steady erosion of our constitutional foundations. An activist judiciary will gradually supplant the democratic process. This is not the system of government our constitution envisions. Parliament must act now to maintain the integrity of our legal system for generations to come.

Digital Courts and AI

Victorian Law Reform Commission's Artificial Intelligence in Victoria’s Courts and Tribunals: Consultation Paper reflects the following Terms of Reference

Opportunities and risks of artificial intelligence in Victoria’s courts and tribunals Artificial intelligence (AI) tools are rapidly evolving, with their application increasing across society. There is potential for the use of AI in Victoria’s courts and tribunals to improve user experiences and generate efficiencies. The use of AI tools carries both risks and opportunities for fairness, accountability, transparency and privacy as well as improvements to accessibility. 

The Victorian Law Reform Commission (the Commission) is asked to make recommendations on legislative reform opportunities and principles to guide the safe use of AI in Victoria’s courts and tribunals. In developing its recommendations, the Commission should consider:

• opportunities to build on existing legislation, regulations and common law in supporting the use of AI within Victoria’s courts and tribunals; • the benefits and risks of using AI in Victoria’s courts and tribunals, including risks relating to accountability, privacy, transparency, and the accuracy and security of court records; • the need to maintain public trust in courts and tribunals, and ensure integrity and fairness in the court system; • the rapid development of AI technologies and how this may influence the extent to which such technologies should be adopted and regulated, and; • applications of AI and how it is regulated in comparable jurisdictions and contexts (including work being done to develop a framework for regulating AI at the federal level in Australia) and potential learnings for Victoria.

The Commission is asked to provide principles or guidelines that can be used in the future to assess the suitability of new AI applications in Victoria’s courts and tribunals. 

 The Consultation Paper features a 'Question List' 

 Chapter 2: What is artificial intelligence? 

1. Should courts and tribunals adopt a definition of AI? If so, what definition? 2. Are there specific AI technologies that should be considered within or out of the scope of this review? 

Chapter 3: Benefits and risks of AI 

3. What are the most significant benefits and risks for the use of AI by a. Victorian courts and tribunals? b. legal professionals and prosecutorial bodies? c. the public including court users, self-represented litigants and witnesses? 

4. Are there additional risks and benefits that have not been raised in this issues paper? What are they and why are they important? 

Chapter 4: AI in courts and tribunals 

5. How is AI being used by: a. Victorian courts and tribunals b. legal professionals in the way they interact with Victorian courts and tribunals c. the public including court users, self-represented litigants and witnesses? 

6. Are there uses of AI that should be considered high-risk, including in: a. court and tribunal administration and pre-hearing processes b. civil claims c. criminal matters How can courts and tribunals manage those risks? 

7. Should some AI uses be prohibited at this stage? 

Chapter 5: Regulating AI: the big picture 

8. Are there lessons from international approaches that we should consider in developing a regulatory response for Victorian courts and tribunals? 

9. What would the best regulatory response to AI use in Victorian courts and tribunals look like? Consider: a. which regulatory tools would be most effective, including rules, regulations, principles, guidelines and risk management frameworks, in the context of rapidly changing technology. b. whether regulatory responses should be technologically neutral, or do some aspects of AI require specific regulation? 

10. How should court and tribunal guidelines align with AI regulation by the Australian Government? 

Chapter 6: Principles for responsible and fair use of AI in courts and tribunals 

11. Are the principles listed in this chapter appropriate to guide the use of AI in Victorian courts and tribunals? What other principles might be considered? 

12. Are principles sufficient, or are guidelines or other regulatory responses also required? 

13. What regulatory tools, including guidelines, could be used to implement these high- level principles in Victoria’s courts and tribunals? 

14. How can the use of AI by courts and tribunals be regulated without interfering with courts’ independence, and what risks should be considered? 

15. Is it appropriate to have varying levels of transparency and disclosure depending on the use of AI by courts and tribunals? (For example, use by administrative staff compared with judicial officers.) 

16. Who should be able to contest an AI decision, and when? Is the capacity to contest necessary for decisions made by court administration staff, or only judicial decisions? Consider how courts and tribunals can ensure sufficient information is available to enable decisions to be contested. 

Chapter 7: AI in courts and tribunals: current laws and regulation 

17. Building on Table 7, are other statutes or regulations relevant to the safe use of AI in Victorian courts and tribunals? 

18. Are there legislative or regulatory gaps or barriers where reform is needed for the safe use of AI in courts and tribunals? 

19. What, if any, changes to legislation, rules or processes are necessary to enable courts and tribunals to: a. safely use AI b. consider evidence in relation to AI c. implement human rights principles (Should there be a human rights impact assessment of any AI use in courts and tribunals?) d. align AI use with privacy responsibilities? 

20. How can changes be achieved while maintaining appropriate flexibility? 

21. Is there a need to strengthen professional obligations to manage risks relating to AI? If so, what changes might be required to the Legal Profession Uniform Law, Civil Procedure Act or regulations?

Chapter 8: Developing guidelines for the use of AI in Victoria’s courts and tribunals 

Guidelines for court and tribunal users

22. Should guidelines be developed for Victorian court and tribunal users relating to the use of AI? 

23. Should guidelines require disclosure of AI use? If so, who should it apply to: a. legal professionals b. expert witnesses c. the public (including self-represented litigants and witnesses)? 

24. What are the benefits and risks of disclosure? If mandatory, what form should disclosure take? 

25. What is the role for courts in regulating use of AI by legal professionals? What is the role of professional bodies such as the Victorian Legal Services Board and Commissioner, the Law Institute of Victoria and the Bar Association? 

26. Are there other guidelines or practice notes relevant to court users and AI use that should be considered by the Commission? 

Guidelines for courts and tribunals 

27. Should guidelines be developed for the use of AI by Victorian courts and tribunals including for administrative staff, the judiciary and tribunal members? If so, what should they include and who should issue them? 

28. Should there be dedicated guidelines for judicial officeholders? 

29. Are there tools from other jurisdictions you think should be incorporated into guidelines to support Victorian courts and tribunals in their use of AI? If so, what are they? 

30. Should courts and tribunals undertake consultation with the public or affected groups before using AI and/or disclose to court users when and how they use AI? What other mechanisms could courts and tribunals use to promote the accountable and transparent use of AI? 

31. Should there be different guidelines or additional considerations for the use of AI in relation to criminal and civil law matters? 

Assessment framework for courts and tribunals 

32. Should an assessment framework be developed to guide the assessment of the suitability of AI technology in Victorian courts and tribunals? 

33. Does the NSW AI Assurance Framework provide a useful model for Victoria’s courts and tribunals? Why or why not? What other models or guidelines should be considered? 

34. How can risk categories (low, medium and high) be distinguished appropriately? What should be considered high risk? 

35. What potential harms and benefits should an AI assessment framework for Victoria’s courts and tribunals consider? 

Chapter 9: Support for effective use of principles and guidelines about AI 

36. Are there appropriate governance structures in courts and tribunals to support safe use of AI? 

37. What governance tools could be used to support the effective use of AI in courts and tribunals such as: a. an AI register for AI systems used in the justice system? b. accreditation of AI systems? 

38. Who should be responsible for developing and maintaining these systems? 

39. How can education support the safe use of AI in courts and tribunals? 

40. Are there opportunities to improve the current continuing professional development system for legal professionals about AI?

Juries

The Australia Jury in Black and White by Jill Hunter and Sharleigh Crittenden for the Australasian Institute of Judicial Administration reviews claims that Indigenous Australians are under-represented on contemporary juries.

 Its aim is to identify the major legal and process-linked barriers to First Nations people accessing equal jury franchise and to this end, it draws on existing literature, law reform reports, statistics, case law and legislation to determine how and why (and if) this under-representation exists and to explore strategies for change for closing this particular gap. On occasions, given the lack of statistical data on the topic, the report draws on credible anecdote. The modern jury is described in case law, in academic literature and reflected in the popular imagination as an inclusive and democratic institution. The High Court of Australia recognises the representative jury as operating as a proxy of democratic legitimacy within the criminal justice system because full jury participation is central to the integrity of the institution of the jury. The so-called ‘genius’ of the jury system requires it to be non-discriminatory. Otherwise, it does not reflect ‘the ordinary experiences of ordinary people [drawn] from collective experience of ordinary affairs’, nor does it infuse the jury with ‘a deep-seated conviction of free men and women about the way in which justice should be administered’. 

However, this widely accepted conception of the jury is relatively recent. Less than 100 years ago, juries were a place reserved solely for propertied white men. While the gender barrier was removed in the latter half of the twentieth century, and class barriers generally ended slightly earlier,6 race-based obstructions have proved more obstinate. Indigenous political disenfranchisement caused Indigenous presence on the electoral roll (and so on the jury roll or list) to be a work-in-progress taking (and continuing to take) decades. Non-enrolment on the electoral roll is a significant factor in the absence of Indigenous Australians from jury pools, jury panels and jury rooms. But there are also other major pressure points within jury legislation – as well as beyond it – that contribute to this diminished jury franchise. 

It is important to appreciate that the law and processes relating to Australian juries are not easily accessible. This is in part because Australian case law addressing challenges to the jury array tends to focus on restating the primacy of the governing statutory instrument, and as discussed below, this means that its emphasis is on the statutorily prescribed process of random selection as reflective of a ‘representative’ jury. Each Australian state and territory has its own legislation, and while jurisdictional differences can be small, detail is key – and it is a laborious exercise to trawl through legislative minutiae, to ascertain local practices, whilst also appreciating the historical context of the legislation and many of these practices. However, in the absence of direct comprehensive information and rigorous statistical data, this is the only available window into actual practices. ... 

Law reform State and Territory law reform bodies have addressed the issue of jury selection on numerous occasions.  In their reports Indigenous representation has arisen for consideration. Reports include those by the ALRC and by the Western Australian, Queensland, Northern Territory,  and New South Wales  law reform bodies.   

In summary, these law reform bodies have recommended:

• developing strategies to increase the number of Indigenous people on the electoral roll. 

• supplementing the electoral roll for the purposes of compiling jury lists with names from Centrelink and motor vehicle registry databases. 

• amending jury legislation to allow for additional methods of service for jury summons. 

• reducing disqualifications based on criminal history. 

• monitoring/reviewing peremptory challenges. 

• providing, where appropriate, support mechanisms instead of disqualifying potential jurors. 

• providing, where needed, support with travel and accommodation (practical and financial) for people from Indigenous communities when they are summoned for jury service to attend court. 

• reviewing jury district boundaries. 

• establishing strategies to facilitate the return of juror questionnaires. 

• considering, where absent, the introduction of a statutory power to enable trial judges to respond to an apparently unfair jury composition jury. 

• providing culturally appropriate educational programs within Indigenous communities that promote jury service. 

• conducting research to determine the extent of representation of Indigenous people on juries and the factors impacting on their jury participation.   

Next steps 

Legislation can correct many of the points of disproportionate and inappropriate impact on potential First Nations jurors identified by this report. However, we recommend a full-scale evaluation process be undertaken with broad Indigenous community consultation. Principles of self-determination require that Indigenous voices and perspectives lead and shape changes to make equality of Indigenous representation on juries an everyday reality. To this end, Ontario, Canada offers useful illustrations of such initiatives.   

We identify the following as the major pressure points in the law and its processes compromising Indigenous representation on juries: 

Non-inclusion on jury lists

• Non-inclusion on the electoral roll 

• Inadequate updating to the electoral roll 

• Insufficiently inclusive jury district boundaries 

• Jury summons non-delivery

Removal from jury lists – Disqualifications & exclusions/exemptions 

• Criminal history disqualifications inappropriately extensive 

Elimination from the jury: Challenges, excusals and self-eliminations 

• Jury summons non-responses and/or excusal requests — Financial burden – e.g., travel and/or arranging alternative care for family or others — The jury summons failing to adequately communicate 

• Peremptory challenges 

• Prosecution stand asides 

• Caring responsibilities in the extended family and in the community 

• Disproportionate chronic health problems 

• Other issues — Language challenges — Fear, alienation and distrust of the criminal justice system — Cultural constraints: e.g., extended kinship, community ties.

The authors conclude 

All-white juries, like Australia’s all-white judiciary and legal profession, were a matter of course for most of the twentieth century and non-Indigenous Australians continue to dominate these places. With the jury, the racial divide has been aided by statute, by case law and by social and economic divides from the very beginnings of the jury system in Australia. This position has been normalised by jury legislation that until late last century discriminated against women as well as ‘non-Europeans’,  and against those who lacked property. This discrimination was justified by the notion that a jury of peers meant merely that a defendant was not tried by his ‘inferiors’.  Explicit gender- and race-based exclusions lasted until well into the 20th century.  Race-base exclusion of Indigenous Australians was comprehensive because, until the latter part of the twentieth century, they were unable to enrol on the electoral roll: the only source of jury lists. They currently remain under-represented on the electoral roll and, due to their over-representation in the criminal justice system, they are likely to be disproportionally disqualified by legislative provisions limiting eligibility for jury service for those with a criminal history. 

This review has indicated the myriad of ways in which Indigenous Australians are disproportionately excluded from participating on juries. It has also shown how Australian law reform bodies have reviewed jury selection and provided recommendations directed to improving First Nations Australians’ representation on jury lists, panels and juries – yet legislatures have been largely unresponsive to implementing change. Indigenous under-representation remains, to a significant degree, the product of systemic inequalities in the jury selection process, and without appropriate representation, as prominently displayed by the Yuendumu community following the Rolfe trial, First Nations people cannot have confidence in the criminal justice system. This disenfranchisement and the inertia that permits it to continue cannot be acceptable. We began this survey adopting six guiding principles. Two of these are the principles of inclusiveness and of responsiveness to local conditions. The Australian jury system has continued to be influenced by its English heritage. As the LRCWA noted of the 1898 parliamentary debates in Western Australia, ‘nothing ... suggests that service on juries by Aboriginal people was contemplated by legislators at that time’.  However, despite the eventual formal extension of jury franchise equality to Indigenous Australians towards the end of the 20th century, the Australian system has relied on random selection as the legislatively prescribed mechanism for achieving representative juries. Yet its actual application requires equal opportunity to be called for jury service. Hence, the Australian jury system fails to make a genuine attempt to provide for all Indigenous Australians. 

 It becomes self-evident, then, that exclusion from the jury system is one more way in which the ‘profound social, economic and political marginalisation’  of Indigenous Australians is manifested. The exclusion of First Nations from juries joins their political disenfranchisement via their under-inclusion on the electoral roll, with their disproportionate levels of ill-health and criminalisation, and their financial precarity. These are all features of systemic inequality, borne out of the impact of colonisation. For this reason we echo the views expressed by ATSILS (Qld) to the QLRC, and quoted in the Commission’s 2011 Report: We view increasing levels of education and literacy, decreasing incarceration rates and encouraging people to register to vote as just some of the important longer term options to increase Aboriginal and Torres Strait Islander peoples presence on juries. ... We do not view rectification of the exclusion of Aboriginal and Torres Strait Islander people occurring without meaningful changes. 

For the two remaining issues — shifting inertia and embarking on reform through a process that is Indigenous-led and collaborative — we suggest an appropriately resourced and national focus is highly desirable because First Nations representation on juries is an issue of national importance. To this end, we support the 2006 recommendation from the ALRC Uniform Evidence Law that the Standing Committee of Attorneys-General initiate an inquiry into the operation of the jury system. Its recommendation suggested including such matters as eligibility, empanelment, warnings and directions to juries and envisaged such an inquiry would involve law reform bodies from Australian states and territories.  As this report indicates, jury eligibility and empanelment are topics large enough for separate consideration to warnings and directions, particularly as Indigenous under-representation should be a focal point. The failure of parliaments to enact many of the important recommendations by law reform bodies to date is clearly a potential major concern for a future inquiry, suggesting that the process should not be rushed. It should be well-informed and planned, and engage the executive and the legal profession with a shared appreciation of its major goals. We note that the AEC began recording and publishing estimates of Indigenous enrolments on the electoral roll only relatively recently, but by doing so the AEC has been able to assess progress and adapt its strategies to improve Indigenous enrolment. In preparation for an inquiry, it should be a priority in every state and territory to maintain and make publicly available (for example, through courts’ annual reports) statistics on Indigenous representation on juries. These will enable trends to be identified as well as for strategies – aimed at improving Indigenous representation measured as part of a regular evaluation of their effectiveness – to be developed. A detailed review of overseas experiences directed to enhancing Indigenous participation on juries is a worthwhile first step. 

Overall, law reform bodies, case law and academic commentary reveal a multi-pronged approach is required:

• to review legislative and regulatory provisions in terms of: — critically analysing peremptory challenges and stand asides; — rationalising criminal history disqualifications; — ensuring jury district boundaries are inclusive of all communities; — developing strategies based on an ethos of support rather than of exclusion, expulsion, or criminal penalising for non-compliance. 

• to improve communications and understanding: — by collaborating with Indigenous agencies, organisations and experts to improve enrolment and response to summons and any other communication issues. 

Importantly, a national enquiry has no reason to replicate previous law reform bodies’ collation of past recommendations as these are based on sparse data — the inevitable consequence of the failure to maintain statistical data of Indigenous-identifying jurors at every stage of the selection process. Instead, a sound data-base should be established. Such a base would include key statistical data relating to Indigeneity in all Australian states and territories, and establishing ongoing collection of such statistics: — on jury lists — summonsed for jury service — forming the jury pool, i.e. including figures for categories of disqualifications, exemptions and excusals, and — empanelled jurors. 

In terms of ensuring Indigenous leadership and collaboration, the Ontario Debwewin approach provides a useful procedural template and strategies. The Debwewin consultations included recommendations to create Elders and Youth Councils, increasing specialty courts, and the appointment of an Assistant Deputy Attorney General position responsible for Aboriginal issues, as well as incorporating the more typical consultation process with Indigenous organisations and communities, as well as other key stakeholders within the legal system. These features will ensure a comprehensive review process is grounded in the best-available statistical and community-informed information. 

Broadly speaking, the diversity of approaches across Australia do not reveal a rich mix of experimentation and development. Instead, criminal disqualifications, excusals, exemptions and jury district boundaries at times reflect a grab bag of conservative ideas, that at times disconnect from the desirability of ensuring equality of representation, inclusion and participation. As the Canadian Debwewin initiatives indicate, when seeking to provide culturally safe environments it is important to incorporate strategies that can build confidence in the jury, in courts and the justice system generally. This may take time, but such broad-based initiatives are necessary to meet the apparently intractable challenges of language, mistrust and remoteness. Noting the Debwewin reference to speciality courts, it is important to acknowledge the reality that some of the most difficult challenges may be best met through alternative structures to the current jury trial. How this is achieved, and what contexts it may operate in, are for further consideration, keeping in mind the capacity of modifications to enhance self-determination.

Judicial Commission

The national Attorney-General has released a discussion paper on Scoping the establishment of a federal judicial commission .

The paper states

The Australian Government is considering the potential scope and design of a federal judicial commission that can independently examine complaints made to it about federal judges and refer its findings for appropriate action. This was announced by the Attorney-General, the Hon Mark Dreyfus KC MP, on 25 October 2022 in the context of the 2022-23 Budget, and reflects the Attorney-General’s longstanding support for a federal judicial commission. 

On 29 September 2022, the Government published its response to the Australian Law Reform Commission’s (ALRC) 2021 report, Without Fear or Favour: Judicial Impartiality and the Law on Bias (ALRC Report), agreeing in-principle with the ALRC’s recommendation that the ‘Australian Government should establish a federal judicial commission’.  The ALRC acknowledged that establishing a federal judicial commission would be a significant reform, requiring its own policy development process, including further broad consultation. 

The establishment of a federal judicial commission would follow the creation of similar bodies in five of Australia’s states and territories, and would build on the Australian Government’s strong commitment to integrity, fairness and accountability across all areas of government, including by complementing the National Anti-Corruption Commission which will commence operation in 2023. 

This paper seeks views from stakeholders and interested members of the public on the model and key features of a federal judicial commission. This paper does not consider reforms to complaints-handling mechanisms for non-judicial officers or state and territory judges, nor does it canvass the implementation of other recommendations from the ALRC Report. 

The Australian Government has not yet made any decisions on the merits and policy design of a federal judicial commission. 

Responses to this discussion paper will be considered by the Attorney-General’s Department to inform advice to Government in relation to the merits and design of a model for a federal judicial commission. Any proposed model for a federal judicial commission must respect the independence of the courts and judiciary in accordance with the Constitution, which is fundamental to the rule of law and democracy in Australia. The decision to establish a federal judicial commission will be a matter for the Australian Government.

The questions for consideration are - 

Composition and decision-making 

1. Should the membership of a federal judicial commission include some or all of the heads of jurisdiction of the High Court of Australia, the Federal Court of Australia and the Federal Circuit and Family Court of Australia? 

2. Should a federal judicial commission have any other ex officio or appointed members? If so, how many members should constitute the commission, and what criteria and appointment processes should apply? 

3. How should decisions of a federal judicial commission be made where the members are not able to unanimously agree? 

Scope: judicial officers 

4. Should a federal judicial commission be empowered to examine complaints about a justice of the High Court in addition to other federal judges? 

5. Should a federal judicial commission be empowered to examine complaints about a former judicial officer and, if so, in what circumstances? 

Grounds for considering complaints 

6. Should a federal judicial commission be empowered to examine a complaint related to any matter that, if substantiated, the commission is satisfied: a. may justify removal by the Governor-General in Council on an address from both Houses of the Parliament on the ground of proved misbehaviour or incapacity, or b. warrants further consideration on the ground that it may affect or may have affected: i. the performance of judicial or official duties by the officer, or ii. the reputation of the court of which the judge is or was a member? 

7. Are there any circumstances in which a federal judicial commission should not be empowered to examine a complaint that meets one of the above criteria? 

8. Are there any circumstances in which a federal judicial commission should be empowered to examine a complaint that does not meet the above criteria? 

9. Would it be appropriate to have any additional limitations on a federal judicial commission’s jurisdiction to handle complaints about a matter arising after the resignation of a judicial officer, or concerning conduct alleged to have occurred before the appointment of a judicial officer to judicial office or before the commencement of any enabling legislation? 

Avenues for receiving complaints 

10. Should a person be able to make a complaint to a federal judicial commission anonymously, and in what circumstances would this be appropriate? 

11. Should it be open to professional bodies to make complaints to a federal judicial commission? If so, should any limitations apply? 

12. Should any person be able to make a complaint to a federal judicial commission with a request for confidentiality regarding the particulars of the complaint, or the identity of the complainant? 

13. Should a federal judicial commission have the discretion to: a. consider multiple complaints together, and b. take into account repeat conduct of the same or similar nature in relation to the same judicial officer, and if so, should any limitations apply? 

14. Should a federal judicial commission have discretion to initiate an investigation on its own motion if it considers a matter would otherwise meet its thresholds for consideration if it were the subject of a complaint? 

15. Should consideration be given to providing a federal judicial commission with express powers to declare a person to be a vexatious complainant? 

Actions a commission may take 

16. Should the grounds on which a federal judicial commission may appoint an ad hoc investigatory panel to investigate and report on a complaint be expressly limited to matters that a commission considers could, if substantiated, justify removal from office? Alternatively, would it be appropriate for a federal judicial commission to have a discretion to establish an ad hoc investigatory panel to investigate and report on a complaint if the commission considers such an investigation to be appropriate in the circumstances? 

17. Should the identity of judicial officers, the subject matter of complaints, and/or the findings or recommendations made by a federal judicial commission or ad hoc investigatory panel be made publicly available? If so, at what stage in the complaints process and on what, if any, conditions? 

Composition of an investigatory panel 

18. How should an ad hoc investigatory panel established by a federal judicial commission be constituted? What criteria and appointment processes should apply? 

Powers of the commission and an investigatory panel 

19. Would it be appropriate for a federal judicial commission to have the same powers as an ad hoc investigatory panel established by the commission, including the ability to issue summonses and examine witnesses? If not, how and why should the powers of the commission differ from the powers of an investigatory panel? 

Intersection with other bodies and processes 

20. How could a federal judicial commission best complement or support the role of existing judicial education bodies, such as the National Judicial College of Australia and the Australasian Institute of Judicial Administration? 

21. Should complainants be able to rely on evidence resulting from a complaints process, or the findings or recommendations made by a federal judicial commission, in other proceedings?

Pseudolegal, with a dash of 'Misprision of Treason'

In Victorian Legal Services Board v Jensen [2022] VSC 430 the Court states 

[4] When the trial commenced, I explained to Mr Jensen that when he appeared before Garde J [see below], his Honour told him that he needed advice from a legal practitioner as to the effect of the order and what he could and could not do. Garde J explained to him that the court’s order was a restraining order, breach of which would constitute contempt of court that would have serious consequences, including imprisonment. I asked Mr Jensen whether he knew of and understood the content of the injunction. He confirmed he had people explain it to him and that he believed he understood it, and that he was content to proceed with this hearing without the assistance of a legal practitioner. 

Relevant facts 

[5] It is common ground that Mr Jensen has never been admitted to legal practice in Victoria and does not hold, and never held, a practising certificate. His two companies, the second and third defendants, have never been registered as law practices in Victoria. Despite this, Mr Jensen and his companies were found to have engaged in legal practice and to have represented that they were entitled to engage in legal practice. Consequently, on 2 August 2018, the court restrained the defendants in the terms set out above. 

[6] On 14 August 2018, the injunction orders were served on the defendants. 

[7] On 18 February 2021, the VLSB received a complaint from a firm of solicitors that its client and his parents, had received incorrect legal advice from Mr Jensen in around mid-2020 and that this advice resulted in its client being charged with contravening a personal safety intervention order (‘PSI order’ or ‘IVO’). The client was facing a rape charge and the complainant was the beneficiary of the PSI order. 

[8] The VLSB re-opened its investigation into Mr Jensen ’s conduct. It obtained a series of email communications, between 7 August 2020 and 29 October 2020, apparently between Mr Jensen and the parents of the accused. ...

[10] The emails set out the relevant conduct. ... 

[12] On 7 August 2020 at 5:24pm, Mr Jensen sent an email to the parents. The email said:

 It was lovely to connect with you today. 

The attached is a heavy duty spiritual initiation to an affidavit. 

It sounds like you may not have a lot of forensic evidence, so I am using Common Law (Gods Law). 

To rebut the Holy scriptures is impossible in a court, and by anyone else, You need to Just fill out the story you want to get across. 

You are welcome to delete or change what I have done. I just wrote it as if my son had been accused of something that he didn’t do. 

I am open for you to give it your own creative structure. 

Love and Blessings Den 

Denn Jensen Managing Director The JTA Corporation P/L

[13] Attached to the email was:

(a) A template affidavit entitled ‘Template Certificate Identifying Exhibit to Affidavit’; 

(b) A series of photographs of a volume apparently from the Supreme Court Library, entitled ‘Statutes at Large, from the Fifth Year of K. William and Q. Mary, to the Eighth Year of K. William III’ and an extract thereof; 

(c) A draft affidavit, headed ‘Affidavit’ and ‘The law is spiritual’. It contained a mixture of references to scripture, archaic legal texts, current statutes and statements pertaining to legal and religious matters. The statements included, ‘The contents of this affidavit are based on FACT AND LAW and CANNOT BE STRUCK OUT in a Court of law unless the FACTS AND LAW are forensically rebutted.’ It left blank a space for the relevant facts to be inserted. ...

[15]  On 11 August 2020 at 12:08pm, Mr Jensen replied and said:

I will be able to call later today or early evening. 

An affidavit would be the choice over a statement. 

I don’t do statements because they do not hold any authority in the law. An affidavit trumps an affidavit and will short circuit the whole process. 

If either side does not have any forensic proof. The first at law stands at law. And to get an affidavit in first they have to rebut it with forensic proof. 

As you see in the affidavit template I sent you I am setting a scene for an unrebuttably affidavit with Common Law which is Almighty Gods Law. 

This cannot be unrebutted. I will chat later on today. 

I recommend that you don’t send a statement!!!!

In Victorian Legal Services Board v Jensen [2018] VSC 740 the Court states:

[1] The Victorian Legal Services Board (‘the Board’) applies for an injunction under s 447 of the Legal Professional Uniform Law (Vic) (‘Uniform Law’) to restrain the defendants from engaging in unqualified legal practice, and from advertising or representing, or doing anything that states or implies that they are entitled to engage in legal practice. 

[2] It also seeks to restrain Mr Dennis Jensen, the first defendant from: (a) providing legal advice in relation to disputes, proceedings or potential proceedings; (b) corresponding or communicating on behalf of litigants or potential litigants; (c) drawing documents on behalf of or as agents for litigants, including pleadings, affidavits and submissions; (d) appearing in court on behalf of litigants to proceedings; and (e) drawing documents of a legal character. 

[3] Mr Jensen opposes the application. The second and third defendants are companies under the control of Mr Jensen. 

The Board’s case 

[4] The Board alleges that the defendants have engaged in unqualified legal practice, and advertised or represented that they are entitled to do so. It principally points to the facts and circumstances relating to four disputes. ... 

The second dispute 

[15] In 2017, the defendants purported to act for WW, the defendant in a dispute with a Council over unpaid rates. 

[16] On 10 January 2017, Mr Jensen wrote to the Council and asserted that Common Law Resolutions acted on behalf of WW. It asked the Council to reply to it. 

[17] On 31 January 2017, the Council received a letter from Mr Jensen enclosing a document signed by WW and entitled ‘notice of authority.’ WW purported to give Common Law Resolutions his full authority to act on his behalf in the matter between the parties, and in all other matters as his advocate and representative. 

18 On 23 February 2017, Common Law Resolutions purported to render a ‘true bill of accounts’ upon the Council. The ‘tax invoice’ stated that: (a) failure to pay would ‘automatically set legal action in process’; and (b) as soon as ‘we have settled we will remove the Goods and Services PPSR on the [Council]’. 

[19] In March 2017, Common Law Resolutions sent the Council a document titled ‘Common Law Default Notice’, and enclosed a PPSR search certificate. The certificate showed that Common Law Resolutions had registered a security interest over the Council in respect of ‘Debtor Accounts accumulated during the course of Business for invoices issued from time to time.’ The Council had granted no such security interest. 

[20] On 23 May 2017, the Council obtained a default judgment in a proceeding commenced against WW in respect of the unpaid rates. 

[21] On 2 June 2017, Common Law Resolutions provided the Council with a document titled ‘Notice of Objection to a hearing [sic] proceeding in the absence of the parties,’ which imitated a Magistrates’ Court form. 

The third dispute 

[22] In 2017, the defendants purported to act for JB in a building enforcement matter commenced by a different Council. 

[23] On 21 April 2017, Mr Jensen as managing director of Common Law Resolutions, provided the following documents to the Council: (a) an authority for Common Law Resolutions to act as an advocate or mediator; (b) a letter from Common Law Resolutions; and (c) a document titled ‘Criminal Charge Sheet for Common Law Grand Jury’ (the purported charge sheet). 

[24] The letter both asserted that Common Law Resolutions represented JB and sought the Council’s response to it. The purported authority stated: I, [JB] of [address] give authority to Common Law Resolutions Pty Ltd to advocate for me in matters relating to the proceedings brought against me and my property at the address listed above by [the Council]. 

[25] The purported charge sheet charged various council staff with ‘common law criminal charges’ including ‘Misprision of Treason’. ... 

Defendant’s case 

[31] In response to the Board’s case, Mr Jensen handed up a purported charge sheet for grand treason concerning the Court, to be issued by Mr Jensen in the Magistrates’ Court. He stated that the charges were being laid, and that the defendants had no business in the Court. 

[32] The defendants made no submissions of substance to the Court. The Court was not assisted by the defendant’s submissions.

Identity and Activism?

'The New Right and Aboriginal Rights in the High Court of Australia' by Harry Hobbs in (2022) Federal Law Review (Forthcoming) comments 

In resolving disputes, the High Court of Australia sometimes has cause to expound upon the relationship between the Australian State and Aboriginal and Torres Strait Islander peoples. This article examines overblown and disingenuous New Right criticism directed towards the High Court in the aftermath of judgments deemed favourable to Indigenous Australians. It finds two themes recur in these attacks: that the High Court’s decision is undemocratic, or that that the High Court has acted illegitimately. This article demonstrates that such claims are legally baseless. Drawing on quotes from major players in this debate, the article argues further that beneath this criticism lies a deeper angst over the sovereign foundations of Australia; an anxiety that reappears in arguments against contemporary calls for constitutional reform. As Australia nonetheless inches closer towards constitutional recognition of Aboriginal and Torres Strait Islander peoples, the ferocity of New Right censure suggests that the movement may fear that the Australian people do not share their same suspicions.

Hobbs argues

In the days, weeks and months immediately following the decision, New Right political and legal commentators attacked the High Court on several grounds. The decision was a stunning example of ‘judicial activism’. The majority had produced the ‘the most legally indefensible’, and ‘most radical judgment in Australian history’. Concerns were raised about how the judgment suggested the Court conceived of its role. If High Court justices misunderstood their function and sought to engage in the political sphere, there would be a real danger that the rule of law and democracy in Australia could be under threat. Two solutions presented themselves; both extreme but apparently necessary. If the judges did not voluntarily resign their commission, Parliament should launch impeachment proceedings, with the view of their removal from the bench on the ground of proved misbehaviour. They should be replaced by ‘capital-C conservative’ judges. Alternatively, a referendum should be held to allow the people to have their say and overrule the politicians in robes. If neither outcome was forthcoming, perhaps the country itself might breakup. 

New Right commentators were almost in unison. More in sorrow than in anger they wondered how the High Court could have fallen so far from the days of Chief Justice Sir Owen Dixon, when it was widely regarded as ‘far and away the greatest appellate court in the English-speaking world’? Together they lamented that the Court had ‘abandoned the doctrine of strict constructionalism [sic] ... in the dubious search for contemporary political relevance’. The Court—and Australia itself—was at a crisis point. But what decision had motivated such strenuous criticism? 

In fact, it was three decisions—with the first and third being almost thirty years apart—that bore the brunt of New Right opprobrium. Those decisions were Mabo v Queensland (No 2), Wik Peoples v Queensland, and, most recently, Love v Commonwealth; Thoms v Commonwealth. Although each of these cases raised distinct legal issues, all were fundamentally concerned with the relationship between the Australian State and Aboriginal and Torres Strait Islander peoples. The High Court’s role in articulating that relationship in a way that recognised and respected the rights of Aboriginal and Torres Strait Islander peoples underlay the criticism that the Court received. Of course, these cases are not the only High Court decisions recognising and protecting the rights of Indigenous Australians that have attracted censure by the New Right. That list is far longer. Nonetheless, these three cases are central to understanding—and disarming—that opposition. 

The New Right is a label attached to the conservative political movement that first emerged in the United States in the post-WWII period. Influenced by Austrian political economist and philosopher Friedrich Hayek and United States economist Milton Friedman, the New Right sought to dislodge the post-war consensus and wind back former President Franklin D. Roosevelt’s New Deal. Distinguishing itself from the ‘Old Right’ by a commitment to economic liberalism and a robust defence of the free- market, and from social democratic parties by an emphasis on traditional conservative policies of law and order and support for the family unit, the New Right advocated for a ‘muscular conservativism’. After several decades of growing strength, the movement burst to global prominence with the election of Margaret Thatcher as Prime Minister of the United Kingdom in 1979 and Ronald Reagan as President of the United States in 1980. 

In Australia, the New Right surfaced in the late 1970s and solidified during the 1980s. Drawing support from the right-wing of the Liberal and National parties, as well as mining and farming interests outside parliament, the movement rejected the Australian orthodoxy that had supported state intervention in the economy in favour of widespread deregulation. In opposition at the Commonwealth level for much of this early period,  the Australian New Right imported the language and tactics of the American movement. Proponents claimed that a cadre of ‘self-interested educated elites’ were supporting the ‘unreasonable gains’ of economically and socially marginalised groups made at the expense of ‘mainstream’ Australians. Multiculturalism and the notion of reconciliation with Indigenous Australians were seen as particularly ‘troubling’, ‘not only because of the threats they posed to social cohesion but because of their expense (as “rent seekers”) in an economy that suffered from a lack of competitiveness and was hit by the end of the decade with recession’. Under the prime ministership of John Howard, the New Right became the dominant force within modern Australian conservativism. 

The New Right is generally distinct from but may overlap with ‘constitutional conservatives’. In debate over whether and how to recognise Aboriginal and Torres Strait Islander peoples in the Constitution, a group of legal scholars calling themselves constitutional conservatives have argued against reform that would empower the judiciary, such as through the insertion of a clause prohibiting racial discrimination. For constitutional conservatives, such a clause would undermine parliamentary supremacy and invite inappropriate judicial activism. The New Right also opposes a racial non- discrimination clause, but its concerns are broader. Rather than worried about judicial activism per se, the focus of New Right criticism is outcome oriented. New Right critics may frame their censure as complaints over the most appropriate approach to constitutional interpretation, but as we will see, their real concern appears to be the fact that the High Court has ruled in a way that protects the rights of Indigenous Australians at the expense of ‘mainstream’ Australians. 

The paper is divided into three substantive sections. Part II outlines the three cases that form the background to this study. In Part III, I discuss the criticism directed towards the court in the aftermath of each judgment. This is organised thematically to illustrate that the same arguments reappear in repackaged form. As this study reveals, two key themes recur in New Right commentary. First, that the High Court’s decision is somehow undemocratic, either because it has prioritised the interests of Indigenous Australians over non-Indigenous Australians or because the judges have acted as politicians. Second, that the High Court has acted illegitimately by rewriting Australia’s history or by seeking to impute moral responsibility on contemporary Australians for the ‘supposed’ sins of our ancestors. In either case, New Right criticism fixed on the Court misrepresents the law in rhetorically inflammatory ways that help to fuel their larger political narrative. 

In Part IV, I demonstrate that these same themes are often used to dismiss contemporary calls for broader constitutional reform. Drawing on quotes from major players in the debate, I argue that these attacks appear to be motivated by an anxiety over Australia’s claim to sovereignty. At root in the New Right’s opposition to Aboriginal rights in the High Court is a recognition (unconscious or otherwise) that the sovereign pillars of Australia are both ‘morally suspect’ and ‘legally shaky’. As Australia inches closer towards constitutional reform, the legal baselessness and political ferocity of New Right criticism suggests that perhaps the movement understands that the Australian people do not share their same anxieties.

Retirements

'The Shadow of the Court: The Growing Imperative to Reform Ethical Regulation of Former Judges' by Gabrielle Appleby and Alysia Blackham in 67(3) International & Comparative Law Quarterly 505-546 comments 

 In recent years there has been a trend towards independent and more transparent ethical regulation for sitting judges, which is said to promote public confidence in the judicial institution, and reflect a move towards accountability and transparency as judicial values. However, regimes governing sitting judges largely fall away when the judge retires from the bench. Increasing longevity and rising numbers of former judges raise complex ethical regulation questions. Drawing on judicial ethics regimes in England and Wales, Australia, the United States and New Zealand, and instances where the conduct of former judges has reflected poorly on the integrity of the judiciary, this article argues that there are strong reasons for extending ethics regulation beyond judicial retirement. By reference to the principles that inform the rules regulating the conduct of sitting judges, we investigate the extent to which misconduct and disciplining regimes should extend to former judges, and whether there is a stronger role for soft instruments and more formalized processes for regulating former judges. In doing so, we propose a model for the development of ethical regulation for former judges. 

 The authors argue 

 Traditionally, common law jurisdictions shared a practice in which the ethical conduct of serving judges was regulated through informal processes: the head of jurisdiction dealt with—to the extent they could—complaints and other disciplinary matters and the ethical norms were set out, if at all, in non-binding soft instruments promulgated by the judges themselves. However, increasingly across these jurisdictions it has been accepted that serving judges should be subject to more independent and transparent disciplinary regimes. However, even within those systems where more formal, independent processes have been established, the standards of expected ethical behaviour generally continue to be set in soft codes of conduct written by the judges themselves. This trend towards independent and more transparent ethical regulation for serving judges is said to promote ‘public confidence’ in the judicial institution, and reflects the evolution of the accepted judicial values of independence and impartiality towards the inclusion of values such as accountability and transparency. 

However, this combination of hard and soft regimes governing serving judges almost entirely falls away when the judge retires from the bench. This lacuna is easily understood: in years gone by, when the prevailing norm was judicial appointment for life, or even when judicial retirement ages were introduced but life expectancy or quality of life into older age was lower, the question of the regulation of retired judges raised fewer causes for concern. However, today, the introduction of mandatory retirement ages and increased lifespans mean that the retired judge will usually, although not always, be somewhere in their early-to-mid seventies and will have fruitful decades ahead of them. The rising numbers of retired healthy and active—professionally and socially—retired judges should be celebrated; but they also raise complex questions in terms of ethical regulation. 

There is also the related—but somewhat different—phenomenon of the ‘resigned’ judge. Judicial resignation prior to retirement might occur for health or family reasons. It might occur because the judge is dissatisfied with the judicial role, or is seeking new, more diverse or different professional challenges, or for financial reasons. Where a judge resigns for such reasons, it might be thought that there is a good argument to allow them to return to practice or to take up other work. Resigned judges may not qualify for a judicial pension, meaning they need to find other work to support themselves financially. Lack of flexibility post-resignation might undermine the government's capacity to entice high-quality appointees, as judicial appointment will close off all other career paths. Raising other, distinct concerns are judges who resign to avoid the investigation—and consequences—of a complaint made against them while they were serving on the bench. 

This combination of factors, causing a significant shift in the demographics of former judges, has meant that assumptions previously made around appointment to the bench representing an individual's pathway from mid- or late-career to retirement, with limited possibilities and inclinations to undertake post-retirement work and activity, no longer hold true. There is a need, therefore, to rethink the lack of ethical regulation of this increasing, and increasingly active, cohort. Indeed, as many of the case studies demonstrate in this article, the increasing numbers of active former judges has led to real concerns across a number of jurisdictions about how their conduct affects the perception of the integrity of the judicial branch. 

If the objective underpinning the ethical regulation of serving judges is, as is so often espoused, maintaining ‘public confidence’ in the integrity of the judiciary, there are strong arguments that the conduct of former judges might also affect this confidence, and thus such regulation ought to extend beyond judicial retirement or resignation. As we explain in this article, confidence in the integrity of judges more generally might be harmed by the poor conduct of a former judge, particularly where it amounts to criminal conduct or involves dishonesty. Confidence might be harmed by the appointment of former judges to positions where there might be integrity concerns if a serving judge were appointed. Confidence might be harmed where the former judge criticizes his or her former colleagues on the bench, particularly when those colleagues remain on the bench. Confidence might also be harmed by judges seeking to take up legal practice following retirement or resignation, giving rise to perceptions of unfair advantage gained by reason of their former judicial office, or perhaps currying favour with legal firms prior to retirement. Confidence might also be affected by the reappointment of former judges to ‘acting’ judicial positions post-retirement, particularly if their behaviour or other activities while sitting as a temporary judge do not accord with the standards expected of other judges. 

This article explores the phenomenon of former judges in established democratic common law systems through a comparative regulatory and case study approach to draw normative conclusions as to regulatory design. This comparative research methodology offers critical insights into how former judges might be regulated as a cohort, and reveals the growing universality and relevance of ethical issues faced by former judges with demographic change. Thus, this methodology both offers nuanced normative insights into how this issue might be addressed, and reinforces the relevance of these issues to an international audience. As we explain further in Part I, there is a growing international consensus not just around the judicial values that must be protected in judicial design and practice, but in relation to the ethical norms that should govern the behaviour of individual judges to help in achieving these values. This indicates that not only is there coalescence across jurisdictions around judicial values (which now extend to independence, impartiality, accountability, transparency, representativeness and efficiency), but there is increasing agreement about the conduct of individual judges that is conducive to their achievement. Further, the comparative common law jurisdictions that we have selected share a common judicial history in relation to ethical regulation and, although there are important differences in judicial culture across these jurisdictions that we do not wish to gloss over, there are striking similarities not just in relation to how judiciaries have traditionally responded to individual ethical breaches, but in relation to more contemporary reform of such practices. 

While we have referred throughout our analysis to international instruments that demonstrate consensus across common and civil jurisdictions, and established and developing democracies, we have not included the position of judges in civil law systems, nor common law systems in developing or flawed democracies. We have excluded civil jurisdictions because the judicial history, traditions, culture and career path in such systems, particularly around judicial independence from the executive branch, is too distinctive and differs too markedly from common law traditions for us to draw universal conclusions. We have excluded developing or flawed democracies because we acknowledge that the institutional and individual pressures and responsibilities on judiciaries in these systems are likely to be significantly different from those in established democracies. With these exclusions in mind, the comparative jurisdictions we have selected for our analysis are England and Wales, Australia, the United States and New Zealand. As we explore in the body of the article, within these jurisdictions we are alive to differences in judicial culture and expectations that flow, for instance, from the perceptions of the working conditions of judges, the process and nature of judicial appointment, the constitutionally mandated level of separation of powers, and the particular judicial pension scheme that has been adopted. 

The remainder of this article is set out as follows. In Part I, we explain in more depth the objectives behind the ethical regulation of serving judges, and the different hard and soft regulation models that currently exist in the jurisdictions of England and Wales, Australia, the United States and New Zealand. In Part II, we survey the hard and soft regulation of former judges in those jurisdictions identified in Part I across different areas of post-judicial conduct. In this part, we go beyond the conventional consideration of the regulation of return-to-practice that has, to date, dominated scholarship and what little formal regulation of post-judicial conduct that exists. Recognizing that many other dimensions of the conduct of former judges can affect perceptions of and confidence in the judiciary, we also explore the regulation of former judges when they undertake other professional roles (including public positions, for instance, as commissioners on public inquiries, and private roles); the effect of criminal actions of former judges and the capacity of professional regulatory regimes to respond to such actions; the regulation of the appointment of former judges back onto the bench as temporary judges; and, finally, we consider the regulation of former judges ‘speaking out’ about or against the bench. By drawing on a series of recent incidents where the conduct of former judges has reflected poorly on the integrity of the judiciary across the jurisdictions we have studied, we demonstrate just some of the myriad ways that post-judicial conduct can bring the court's reputation for impartiality and probity into disrepute. In Part III, by reference to those principles that inform the rules regulating the conduct of serving judges, we investigate the extent to which misconduct and disciplining regimes should extend to former judges, and whether there is a stronger role for soft instruments and more formalized processes for regulating the conduct of former judges.