A quick thread on Judicial Accountability.

The widespread disgust regarding the sexual harassment allegations against former High Court justice Dyson Heydon has - of course - got people thinking about whether or not our judges are sufficiently accountable.

A great example is this piece by the always insightful @Gabrielle_J_A suggesting that a "larger accountability vacuum that still yawns over the Australian federal judiciary" https://theconversation.com/australia-urgently-needs-an-independent-body-to-hold-powerful-judges-to-account-141272

I want to unpack this idea a bit, because judicial accountability is a complex and contested field, and the idea that there is some accountability vacuum is appealing.

It is, however, wrong.

Judges ARE accountable.

Judges are - without any shadow of a doubt - the most accountable of all public decision-makers.

The issue is, that accountability looks very different to what accountability might look like in other context

But first, what do we mean by accountability? Judicial accountability is not about control (agency accountability) or merely transparency (audit accountability) - but about supporting judges to do (and be seen to do) the judicial role with excellence

This has both INTERNAL aspects (actually performing the judicial role) & EXTERNAL aspects (being seen to do so)

For a judicial role of dispute resolution and social governance - demanding huge uncertainties and evaluative discretions - this demands nuanced models of accountability

Issues of independence, impartiality, method and function add additional complexity

The judge has various 'identities', each of which demands different forms of accountability:

1) Judge as office holder (professional accountability)
2) Judge as decision-maker (substantive accountability)
3) Judge as member of court (institutional accountability)

(3) Institutional accountability involves issues of systemic performance - financial accountability etc - which is boring to all you non-judicial studies tweeps

(2) involves the substantive content of decision - what the judge decides. Here issue judicial independence dominate here - we want judges to be fearless and fair in deciding cases, not looking over their shoulders. No other public official is nearly as accountable in this regard

Judicial processes occur in open court. All parties get a chance to be heard. Written reasons explaining the decision are handed down. Parties can appeal. The normative consequences are debated (and constricted/enhanced) by lawyers, academics and other judges.

But - importantly - the judge should not face personal sanction for the substantive content of decision-making. This is dealt with collectively by the broader institutions of law.

In terms of accountability for substantive performance - doing the job well, and making sure the job is done well - the systems of judicial accountability are by some margin the best of any public institution.

However, and this the challenge, the judge AS A PERSON is largely not imperilled in any way for his/her substantive decision-making, and faces no consequences for it. The responsibility for 'error correction' in the resolution of the dispute and normative governance is collective

To repeat - a judge is largely immune to professional consequences for doing their substantive job poorly (there is some nuance here, but close enough).

This is not a flaw of the system.

This is how it should be

(1) The judge as a person/professional can be held to account for criminal conduct. They have civil immunity for the substantive decision, but not for their other conduct.

But the job of the judge is largely not in any peril for how they decide case - and this is good

Senior court judges can only be removed by an address of Parliament - this has only every happened once in Oz since Federation.

NO change should be made to this security of tenure.

There are good reasons why judges can suffer no professional sanction short of the 'nuclear' option of removal - as the role demands public confidence that can be undermined by lesser sanctions.

This is not a defence of poor conduct - but rather highlighting that there are proper limitations AND a range of largely effective 'soft' and 'informal' accountability mechanisms

The type of judicial misconduct office @Gabrielle_J_A is advocating for can be very useful - particularly for junior judiciary and for conduct not related to substantive decision making (like the Heydon situation). However, they are not a panacea

They can be easily abused - disappointed litigants can agitate claims improperly. They can involve significant expense, and can capture (overstretched) judicial time. They can undermine public confidence (look how many judges were examined!!)

And ultimately, removal will still be a matter for Parliament.

By and large judicial conduct remains excellent. For example, in the UK where there are 23,000 judicial officers, the Judicial Conduct Investigations Office only found 55 cases of misconduct of any kind in 2018-19

https://s3-eu-west-2.amazonaws.com/jcio-prod-storage-1xuw6pgd2b1rf/uploads/2019/11/JCIO-Annual-Report-2018-19.pdf

There may be benefits of the type of body advocated for above - and I know @Gabrielle_J_A is well aware of the limitations and benefits - but it is important to not overpromise.

Even with such a body it is not clear - as @Gabrielle_J_A notes - that Heydon would have been removed. Removal must remain almost impossible. However, it would almost have been inevitable that he would have 'retired' early - 'soft' power can be profound here

There is huge scope for reform and improvement.

But it is really important that we be clear where we are coming from. The framing matters here more than most places

Judges are not the unaccountable 'enemies of the people'. They should not be appointed by politicised processes.

Nor should they be removed by them.

Judges are amongst the MOST accountable of any public decision maker - even if that accountability is complex

When we say judges are 'unaccountable' or that there is an 'accountability deficit' we can inadvertently and improperly damage our judicial institutions

Reforms may be justifiable (though I am yet to be fully convinced) - but it is on a baseline of high collective accountability.

Judicial accountability ultimately depends upon internalised judicial integrity + external confidence in the excellent performance of the role.

Complaints commissions can undermine as easily as enhance these goals.