National Judicial College of Australia
A National Curriculum for Australian Judicial Officers
Foreword
“The beginning of judicial wisdom is having the humility to recognise that there will always be things which bear on the proper performance of the judicial function which one simply does not know. There will be skills one simply does not have or has not yet mastered. To recognise those human weaknesses is also the beginning of judicial education. Judicial education tethers us to human experience beyond our personal professional experience.”
“We should never forget that we as judges are engaged with one of the greatest concerns of humankind – the cause of justice on earth. If we can improve the quality and intensity of our engagement individually and collectively, we should.”
Justice Stephen Gageler, Keynote Address, NJCA 20th Anniversary, 8 December 2022
“Australia’s judiciary needs, in the national interest, to have available to it a good range of programs of professional development” in order to “improve our skills in court… help us to adjust to changes in the law and in legal practice… help us to adjust to changes in society and in society’s expectations of a judiciary… address matters that were neglected in the past, although no longer, such as how gender and cultural differences can affect the manner in which justice is administered.”
The Hon John Doyle, Sir Richard Blackburn Lecture (2004)
Background
For more than 20 years, the National Judicial College of Australia (the NJCA) has been the national leader in judicial education and training across all Australian States and Territories. In December 2021, the Australian Law Reform Commission called for the development of a national curriculum for judicial education 1. In September 2022, the NJCA Council approved the design and development of a National Curriculum for Australian Judicial Officers (the Curriculum).
The Curriculum builds on the most recent comprehensive judicial education report on curriculum in Australia, the NJCA report prepared by Mr Christopher Roper in 2007 2. The Curriculum is based on best practice in judicial education 3, modern curricula design, identified needs of judicial officers and encourages contemporary andragogic approaches, experiential and transformative learning methods.
Purpose & Aim
Purpose
The Curriculum is designed to provide guidance for initial and continuing judicial education in Australia to enable judicial officers to meet the professional development expectations set out in the National Standard for Professional Development for Australian Judicial Officers and to meet their obligations under their judicial oath. 4.
Aim
It is intended for judicial officers of both courts and tribunals across all jurisdictions. It is designed to be adaptable and dynamic and is not intended to limit what can be offered in judicial education. However, it is intended to provide a comprehensive landscape for judicial education to assist judicial education bodies to identify priority areas for program development, encourage increased coordination between bodies and jurisdictions, and to avoid duplication of effort. 5 The Curriculum may also be used by judicial officers to inform and to guide their own judicial learning.
The Quest for Judicial Excellence
In November 2019, the NJCA published a document on ‘Attaining Judicial Excellence’, which describes the knowledge, skills, and qualities of judicial officers considered to be facilitative of judicial excellence in order to ‘assist in designing professional development programs for Australian judicial officers’ 6. The Curriculum is intended to provide a framework for the development of these programs. These programs should provide judicial officers with pathways “to foster judicial capacity… which focuses on induction, orientation and transition to the [position] and then on a continuous renewal of professional education and sharpening of judicial skills” 7 ; and one that also enables the development of programs that address needs at different career stages.
The NJCA is the national leader in judicial education. Since our inception over twenty years ago, judges and magistrates have led the design, development and delivery of NJCA programs. The Curriculum reflects the NCJA Council and NJCA Program Advisory Committee member’s commitment to the five sustainable goals of judicial education and training:
Pursuit of Life Long Learning
To harness life-long judicial learning, delivered through continuation training and individual judicial learner pathways
Practical & Transformative Management Skills
Judicial education and training that supports renewed ways of working and digital skills, preparing judicial office holders for new technology, scientific advancement, innovation and changes in the way justice is administered across all jurisdictions.
Ongoing Social Context Awareness
A deeper understanding and appreciation of the social context within which decision making and judicial reasoning occurs, as well as encouraging inclusivity, diversity, engagement and respect across the judiciary as it changes
Cross-Jurisdictional Knowledge & Skills
The acquisition and improvement of cross-jurisdictional judicial skills which support and enhance the wider development of the Australian judiciary
Self-Analysis & Introspection of Attitudes & Values
An understanding and appreciation of both individual and collective judicial officer attitudes and values and how these intra-personal qualities impact upon decision making
Philosophy & Structure
“The beginning of judicial wisdom is having the humility to recognise that there will always be things which bear on the proper performance of the judicial function which one simply does not know. There will be skills one simply does not have or has not yet mastered. To recognise those human weaknesses is also the beginning of judicial education. Judicial education tethers us to human experience beyond our personal professional experience.”
“If we are to be true to our ideals of objectivity, fairness, and impartiality, we need to confront our own prejudices and preconceptions and be prepared to appreciate the diversity of society we serve.” 8
Justice Stephen Gageler – Keynote Address, NJCA 20 th Anniversary, 8 December 2022
In the past, judicial education has, appropriately, focused on judge-craft skills and substantive law. However, over the last decade, there has been a growing acknowledgement for judicial education to place greater emphasis on both social contextual training and the exploration of the personal values and attitudes that the individual judicial officer brings to their role 9.
In Roper’s 2007 Curriculum Report, social context and judicial values and attitudes were largely addressed as standalone modules of learning. Since that report, there has been growing acceptance that competence in these two areas is also critical to the judicial role and, therefore, are also essential dimensions that need to be considered when developing a judicial education program.
Accordingly, this Curriculum is underpinned by Four Core Dimensions of Judicial Learning (judge-craft skills, substantive and procedural law, social context, and attitudes and values). This is important given this curriculum is not exhaustive or prescribed, and programs may be developed now or in the future drawing from different parts of this Curriculum or beyond this Curriculum. Therefore, it is important to articulate the Core Dimensions so that they can guide judicial education program design, development and delivery.
Substantive & Procedural Law
This core dimension aims to develop and maintain a judicial officer’s knowledge and understanding of criminal, civil and other substantive law and procedure, regulations and rules (including the rapid mastery of unfamiliar areas of the law as required), international law and international jurisprudence, and statutory interpretation relevant to the fulfilment of the judicial role.
Of judges, training within a system of judicial functions, Sir Gerard Brennan once said that “their minds are cast in the mould of the system, they develop personal qualities which are compatible with the system” and that “they both determine and are formed by the function which they discharge” 10. The purpose of judicial education is to promote competency in carrying out the judicial role and support the development and maintenance of a judicial officer’s ethical identity. Both these aspects are integral to maintaining public confidence and trust in the judiciary. As crystallised in a statement by the former Chief Justice of Australia, the Honourable Murray Gleeson AC QC, “the general acceptance of judicial decisions, by citizens and by governments, which is essential for peace, welfare and good government of the community, rests, not upon coercion, but upon public confidence.” Judicial education strengthens judicial authority and legitimacy. To that end, a judicial officer’s ethical identity reflects the following judicial values:
Independence
The courts remain independent of the other branches of government and judicial officers are not subject to improper pressure or influence when making decisions. 10
These judicial qualities, as concepts, are often merged but are arguably able to be distinguished 11. Importantly, all judicial values are fostered through judicial learning that incorporates all Four Core Dimensions of Judicial Learning.
The units of judicial learning are the broad areas under which programs of professional learning are organised. In each of these areas are programs that support the development of judicial capacity in all dimensions of judicial learning. The units of judicial learning are based on Roper’s 2007 Curriculum Report. Amendments and additions have been made to reflect best practice in judicial learning, globally, as well as changes to the reality of the judicial role 12.
Footnotes
- Without Fear or Favour: Judicial Impartiality and the Law on Bias: Australia needs to address “a lack of co-ordination and an absence of resources to plan and develop systematic judicial education programming”, as was the central challenge facing Canada approximately 15 years ago. (p63).
- The 2007 report ‘A Curriculum for Professional Development for Australian Judicial Officers’, prepared by Chris Roper, AM
- For a complete list of references, please see Annexure A.
- National Standard for Professional Development for Australian Judicial Officers 2006, adopted by the NJCA and endorsed by the Council of Chief Justices, the Council of Chief Judges and the Council of Chief Magistrates, as well as the Judicial Commission of New South Wales, the Judicial College of Victoria, the Australasian Institute of Judicial Administration, the Judicial Conference of Australia and the Association of Australian Magistrates. A review of impact of the Standard was undertaken in 2010 by Christopher Roper.
- For an additional discussion of this issue, see speech by former Chief Justice Robert French, Judicial Education - A Global Phenomenon, The International Organisation for Judicial Training, The Fourth International Conference on the Training of the Judiciary, Sydney, 26 October 2009
- Attaining Judicial Excellence: A Guide for the NJCA, 2019
- The Honourable Justice J Allsop AO, Continuing Judicial Education: the Australian experience, Judcom, Handbook for Judicial Officers – the role of judicial education
- Justice Stephen Gageler, Keynote Address, NJCA 20th Anniversary, 8 December 2022
- Australian Law Reform Commission, Without Fear or Favour: Judicial Impartiality and The Law on Bias, ALRC Report No 138 (December 2021) at [12.78]
- See Forge v ASIC (2006) 228 CLR 45, 80 (Gummow, Hayne and Crennan JJ) (‘judicial independence refers not only to independence from the Executive, it refers to independence from other sources of influence’); Rebecca Ananian-Welsh and Jonathan Crowe (eds), Judicial Independence in Australia (Federation Press 2016); Rebecca Ananian-Welsh and George Williams, ‘Judicial Independence from the Executive: A First Principles Review of the Australian Cases’ (2014) 40(3) Monash Law Review 593.
- Alan Rose, ‘The Model Judiciary – Fitting in with Modern Government’ (1999) 4 The Judicial Review 323, 326. See also Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, [80] (Gaudron J) (‘Impartiality and the appearance of impartiality are so fundamental to the judicial process that they are defining features of judicial power’)
- TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia (2013) 251 CLR 533 [27] (French CJ and Gageler J) (the judicial process involves ‘…observance of the rules of procedural fairness.’)
- The Hon Stephen Gageler AC, ‘Judicial Legitimacy’ (2023) 97 Australian Law Journal 28, 28, and Appleby and Roberts, “Studying judges: The role of the Chief Justice, and other institutional actors”, and “The Chief Justice Under Relational and Institutional Pressure, ” Cambridge University Press 4 May 2021
- See Australian Law Reform Commission, Report 89: Managing Justice (2000) 190 (noting that judicial education can create ‘economies of scale and other matters relating to efficiency.’)
- See Russell v Russell (1976) 134 CLR 495, 520 (Gibbs J) (‘the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character. It distinguishes their activities from those of administrative officials, for “publicity is the authentic hallmark of judicial as distinct from administrative procedure.” To require a court invariably to sit in closed court is to alter the nature of the court’); Commissioner of the Australian Federal Police v Zhao (316 ALR 378, [44] (French CJ, Hayne, Kiefel, Bell and Keane JJ) (‘the rationale of the open court principle is that court proceedings should be subjected to public and professional scrutiny, and courts will not act contrary to the principle save in exceptional circumstances.’)
- Sir Gerard Brennan, ‘The State of the Judicature’ (1998) 73 Australian Law Journal 33, (‘If we are to be governed by the rule of law, we must have a judicature to administer it. The characteristics of that judicature reflect the functions it is charged to perform…[It] must be a competent judicature; there must be judges and practitioners who know the law and its purpose, who are alive to the connection between abstract legal principle and its practical effect, who accept and observe the limitations on judicial power and who, within those limitations, develop or assist in developing the law to answer the needs of society from time to time.’)
-
Three I’s: Independence, Impartiality and Integrity
- Judicial Legitimacy”, The Hon Justice Stephen Gageler of the High Court of Australia, a paper delivered at the 2022 AJOA Colloquium on 7 October 2022.