About six months ago, there was an election for both houses of Australia’s national Parliament. Unfortunately, the election was marred by misadventure.
In the largest State, Western Australia, more than a million votes were cast for the federal Upper House — the Senate. About 1,400 ballot papers were lost between the first count and a recount. And on the recount, two different candidates won.
Under the Australian Constitution, the Senate is a powerful body. Its composition can be critical to the way in which political power is exercised, as every informed member of the public appreciates.
By international standards, Australian elections are mostly dull. Why, then, am I telling this tale?
It is because of the general acceptance of the role our judiciary plays in resolving a contest about the outcome of an election.
Last week, a justice of the High Court of Australia, sitting alone, decided a challenge to the election results,3 declaring that candidates who had succeeded on the recount were not duly elected.
More significantly, the entire Senate election in Western Australia was held to be void.
Potentially, that determination has major importance for the distribution of power nationally for at least the next three years. Despite that, there is no visible tension in the community at the judge’s decision, let alone any public demonstration of disaffection.
Now, Australians — as you may have discovered — are not inclined to be deferential towards those in authority, including judges. Even so, contests about elections are resolved in courts — not fought out in the streets.
That happens because the community has confidence in the independence, impartiality and competence of its judiciary to decide such momentous questions in a timely way, fairly, according to law.
The case is a contemporary, local illustration of how judicial integrity promotes social harmony.
I do not mean to sound complacent or self-satisfied.
Judges in this country appreciate that people are sceptical about the motives and capacities of those who exercise power, legislative, executive or judicial.
We must work to maintain, and to justify, the confidence of the public. That is one reason why Australian judges, lawyers and officials participate in international events that foster integrity; and do so at least as much for what we gain as for what we may contribute.
Over the last 15 years, much thoughtful work has been done in identifying values to which judges — institutionally as well as individually — need to subscribe to sustain confidence that disputes will be adjudicated by capable, unbiased judges, adopting fair and efficient processes.4
We in this room realise why judicial integrity matters.
It is not merely that justice is a universal aspiration.
A properly functioning court system is vital to peace and prosperity; in so many ways.
Judicial integrity matters to a nation’s wealth.
Efficient markets and international trade generate wealth. Commerce depends on the effective enforcement of contracts and property rights by courts.
G20 nations have sophisticated systems of collecting taxes and extending welfare benefits. For so many of their citizens, wealth depends upon attracting benefits from government or in avoiding imposts like taxation, or both.
Nations need an incorruptible judiciary that is independent of the Executive to decide disputes about these things.
Domestic security is affected.
Criminal courts contribute to public safety. Those courts need decision-makers who are honest and impartial, and seen to be so – especially when trying officials who themselves are charged with corruption.
Social peace is promoted when communities accept that disputes among citizens, or between citizen and government, will be decided by judges of integrity.
In examining what can be done to enhance judicial integrity, it is useful to reflect on the dangers.
The risks are not confined to judges. Where court administrators can influence the pace at which a case proceeds or the identity of the judge by whom it will be determined, those staff may present a risk.
The dangers can be both external to the judiciary and internal.
The external are easier to identify and, perhaps, to address.
Obviously, bribery is one. But there may be other external attempts – subtle or crude – to secure influence over the process or outcome of court cases.
The inducements vary around the world. Sometimes, government officials are involved. Parties to litigation may be tempted to reward assistance from a court. Other, sometimes powerful, organisations may think that a decision will affect their interests and seek to influence it: in some countries, media outlets may apply pressure.
The internal dangers largely result from ambition.
In 2006, the United Nations Economic and Social Council invited member States to encourage their judiciaries to take into account the Bangalore Principles of Judicial Conduct.5 Those Principles had been developed by senior judges from both common law and civil law traditions.6 This group, known as the Judicial Group on Strengthening Judicial Integrity, identified six values, expressed as principles, with illustrations of their application.
The principles are:
- Independence. Judicial independence is a prerequisite to the rule of law and a fundamental guarantee of a fair trial. A judge shall therefore uphold and exemplify judicial independence in both its individual and institutional aspects.
- Impartiality. Impartiality is essential to the proper discharge of the judicial office. It applies not only to the decision itself but also to the process by which the decision is made.
- Integrity. Integrity is essential to the proper discharge of the judicial office.
- Propriety. Propriety, and the appearance of propriety, are essential to the performance of all of the activities of a judge.
- Equality. Ensuring equality of treatment to all before the courts is essential to the due performance of the judicial office.
- Competence and diligence. Competence and diligence are prerequisites to the due performance of judicial office.
Many of the illustrations accompanying the Principles have significance for integrity, individually and institutionally. For example,7 one prescribes:
“A judge and members of the judge’s family shall neither ask for, nor accept, any gift, bequest, loan or favour in relation to anything done or to be done or omitted to be done by the judge in connection with the performance of judicial duties.”
The Bangalore Principles encourage national judiciaries to adopt measures to implement those principles, if such mechanisms are not already in place.
The Principles have received support from international agencies and national judiciaries. Perhaps because of this growing acceptance, in the last two years or so, attention has shifted to practical measures that would give effect to them8 (or other statements like them).
In January 2012, in Jakarta, the Supreme Court of Indonesia, in co-operation with other agencies, including the United Nations Office on Drugs and Crime (UNODC), conducted a workshop that attracted judges, academics and lawyers from about 20, mainly Asian, countries “to promote integrity-based reforms of judicial systems” in the region.
The Bangalore Principles were a major point of reference in an exercise in which means were recommended to address deficiencies in judicial integrity. I expect that you will hear more about this in the next presentation.
Four months ago, the Chief Justices of the Asia Pacific region conferred in Singapore.
The first address was by the Chief Justice of the Supreme People’s Court of China. Speaking on the topic, “Building Cleaner Chinese Courts”,9 he described the steps taken to combat corruption.
These included: professional ethics education; formulation of a code of judicial ethics; encouraging transparency by making information about cases available to the public; establishing whistle-blower hotlines to receive complaints about judicial misconduct — complaints which are investigated; and using technology inventively: to broadcast court hearings, to give on-line access to orders and judgments, and in other ways.
The Chief Justice concluded by reminding his international colleagues that “an impartial and incorruptible judiciary is a necessary element in enforcing the rule of law”.
That conference considered other initiatives to advance judicial integrity, including:
- An effective complaints mechanism;
- Supervision of judges by an independent agency that is under the control of judges, not the Executive;
- A register of financial interests of judges and close family members; and
- An appointments commission, to select suitable candidates for judicial appointment.
More recently, in late November last year, in Istanbul, a conference of senior judges from the Asian region examined ways to secure “transparency in the judicial process”.
The Declaration10 that emanated from the gathering proposed, among other things, that:
- Assignment of cases to judges should ordinarily be performed under a pre-determined, transparent arrangement;
- Judicial work should be subject to public scrutiny, and courts should facilitate public access to judgments, pleadings and evidence;
- Media access to judicial proceedings must be assured;
- Appointment, and promotion, of judges should be the responsibility of a body independent of the Legislature and the Executive.
Of course, circumstances of judiciaries vary considerably, within the G20 nations and beyond.
In some countries, the rates of judicial remuneration are so low as to be an incentive to temptation. In others, the Bangalore Principles are already largely in effect.
In Australia, where judicial remuneration is determined by independent tribunals, and security of tenure is assured, we see external scrutiny as important to retaining the confidence of the people in the judiciary.
Our courts value public – including media – access to open hearings. We are content with constant evaluation by a vigilant legal profession. Reasons for decisions are readily available. Guidelines on judicial conduct11 are promulgated. And we encourage professional development through judicial education.
In some States, a permanent, autonomous anti-corruption commission investigates allegations of judicial misconduct.
One court is experimenting with webcasting proceedings. We can expect to see more of that, although Australian audiences are unlikely to find these broadcasts riveting.
There is another development that may interest you.
Quite a few courts have implemented the International Framework for Court Excellence.12
That project was developed by organisations with a judicial focus from Australia, Singapore and the United States, with the assistance of the World Bank and the European Commission for the Efficiency of Justice.
Among the core values the Framework supports are impartiality, independence of decision-making, integrity and competence.
A number of courts around the world have implemented the Framework or are planning to do so.
Let me conclude with the old Dutch painting of the arrest of the corrupt judge, Sisamnes, and by commending, for your consideration, the Bangalore Principles of Judicial Conduct and their implementation.
Justice John H Byrne, AO RFD2
- Speech delivered to the G20 Anti-Corruption Working Group Meeting, Sydney, 27 February 2014.
- Senior Judge Administrator, Supreme Court of Queensland and Chair of the National Judicial College of Australia.
- Australian Electoral Commission v Johnston [2014] HCA 5 (18 February 2014).
- See, for example, Transparency International, Global Corruption Report 2007, (Cambridge University Press, 2007), <http://issuu.com/transparencyinternational/docs/global_corruption_report_2007_english?e=2496456/2664845>.
- Strengthening basic principles of judicial conduct, ESC Res 2006/23, UN ECOSOC, Agenda Item 14(c) (27 July 2006) <http://www.unodc.org/pdf/corruption/corruption_judicial_res_e.pdf>.
- For an historical account, see M D Kirby, “Maintaining Judicial Integrity in an Age of Corruption”, (2011) 35 Australian Bar Review 201.
- 4.14.
- In January 2010, the Judicial Integrity Group promulgated Measures for the Effective Implementation of the Bangalore Principles of Judicial Conduct (“The Implementation Measures”) <http://www.judicialintegritygroup.org/resources/documents/BP_Implementation%20Measures_Engl.pdf>.
- Chief Justice Zhou, Qiang, 28 October 2013, 15th Conference of Chief Justices of Asia and the Pacific, 2013, Singapore.
- The Istanbul Declaration on Transparency in the Judicial Process, Second International Summit of High Courts, 20-21 November 2013, Istanbul, Turkey <http://www.judicialintegritygroup.org/resources/documents/ISTANBUL_DECLARATION_final_version.pdf>. A number of the principles stated reflect The Implementation Measures.
- Guide to Judicial Conduct (Second Edition, 2007), published for the Council of Chief Justices of Australia by the Australasian Institute of Judicial Administration <http://www.supremecourt.wa.gov.au/_files/GuidetoJudicialConduct(2ndEd).pdf>.
- Now in its second edition, March 2013 <http://www.courtexcellence.com/Resources/~/media/Microsites/Files/ICCE/The%20International%20Framework%2021E%202013.ashx>.
