Judgment Revisited after Pronoun Complaint

Following a complaint to the Judicial Conduct Commissioner, a South Australian judicial officer revisited a judgment to correct pronouns. The following article by Naomi Neilson was published in Lawyers Weekly on 1 October 2024.

Over the 2023–24 reporting year, Judicial Conduct Commissioner Michael Boylan said there were just over 60 complaints, including one that alleged an unnamed judicial officer “did not accommodate a person’s position about pronouns” in their written reasons for judgment.

After being asked for a response, the judicial officer reviewed their reasons and drafted an amended judgment with the revisions.

“In those circumstances, I was satisfied that further consideration of the complaint would be unjustified,” Boylan said.

The report, tabled in Parliament late last month, referenced two other examples of complaints the commission received, both for bullying.

In the first, a judicial officer was accused of workplace bullying. Boylan said a preliminary investigation was conducted and an independent investigator took statements from staff.

“Having considered the statements and the judicial officer’s response, I dismissed the complaint,” Boylan said.

The other bullying complaint related to a judicial officer’s alleged conduct towards a prosecutor.

Boylan’s report set out this was “resolved by way of apology from the judicial officer to the person concerned”.

Of the 63 complaints received, 17 concerned allegedly inappropriate conduct in court or in chambers. Compared to the previous year, these complaints have increased from eight.

Another 15 complaints were made about a judicial decision or order and two were received for alleged bias.

Also compared to previous reporting, the number of complaints made against higher court judges decreased, but complaints about the conduct of a magistrate jumped from 21 to 23.

The complaints were mostly made by members of the public.

However, almost half of the 63 were unable to be handled, due to jurisdictional concerns, lack of information, or a failure to adhere to the Judicial Conduct Commission Act.

Boylan said many “continue to misunderstand the role of the Judicial Conduct Commissioner”, with a large part of complainants perceiving the role to be “analogous to an avenue of appeal”.

Court’s accommodation of pronouns over past 12 months

Although the report never identified the judicial officer or the court, a review of the state’s published judgments revealed several instances in which other officers accommodated a party’s preferred pronouns.

In VWA v OMH, after a child known only as “Z” requested that pronouns not be used, the tribunal “respected this request … and the tribunal’s orders are reflective of this wherever possible”.

In the CIT v Department of Human Services judgment, which concerned explicit details of a child’s genitalia, the tribunal made a specific mention that it did “not mean to cause distress, or be disrespectful of” the child’s preferred pronouns.

For the judgment of R v Soergel last July, the District Court of South Australia said while it had to refer to female pronouns – as this was the case at the time of the offending – it mentioned the person in question had begun using male pronouns.