The Judicial Function
A National Curriculum
Rationale
Judicial officers encounter situations in and outside the court room that require them to consider how they should conduct themselves consistently with their judicial oath and required standards of conduct. This may involve issues which raise questions in regard to appropriate judicial conduct.
A National Curriculum
Application of the Core Dimensions
Substantive and Procedural Law
Programs in this unit could cover the constitutional aspects of the separation of powers and the institutional role of courts, the law and procedure concerning judicial bias and recusal applications and judicial officers’ ethical obligations and obligations pursuant to their oath.
Judge Craft Skills
Programs may consider how judicial officers’ conduct in court might give rise to ethical problems such as an apprehension of bias; how best to apply therapeutic jurisprudence principles to different kinds of court proceedings and in different areas of law; the relationship between therapeutic jurisprudence and judicial independence and impartiality;
Attitudes and Values
Programs may consider how personal attitudes, values and implicit biases can affect the process of judging.
A National Curriculum
Core Judicial Qualities
- Independence
- Impartiality
- Fairness
- Accountability
- Efficiency
- Transparency
- Competency
- Integrity
- Courage
- Compassion
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.
Impartiality
This requires ‘treating like cases alike; a process which is free from coercion or corruption; ensuring that inequality between the parties does not influence the outcome of the process; adherence to the values of procedural fairness…and unbiased neutral decision making…’
Fairness
Being patient and respectful, allowing litigants to present their case and ensuring the absence of actual or perceived bias
Accountability
open court principles, annual reports identifying expenditure, rights to appeal, as well as giving reasons, noting the variation in this value for those in leadership roles.
Efficiency
Ensuring the reasonably timely resolution of cases.
Transparency
Maintaining an open rather than closed court as far as possible and providing clear and reasoned decisions that are publicly available as far as possible.
Competency
Having sound knowledge of the relevant law and procedure as well as good court craft skills
Integrity
Displaying intellectual honesty, respect and placing the obligations of judicial office above personal interests both inside and outside the courtroom.
Courage
Doing justice according to law irrespective of the consequences or popularity of the decision
Compassion
Compassion involves recognising the suffering of others and wanting to alleviate it. Within the constraints of the law, judicial officers can show compassion through procedural fairness, judicial engagement (exploring underlying issues and empowering a party to address them) and other therapeutic jurisprudence practices.
A National Curriculum
Judicial Learning Units
Aim
These programs provide judicial officers with an opportunity to deepen judicial officers’ understanding of unconscious bias as it relates to gender, social, cultural or other biases.
Scope
These programs could encompass:
- A consideration of the literature and official statements in regard to the role of the judiciary and of the individual judicial officer
- The effect of judicial independence on the relationship between heads of jurisdiction and judicial officers
- Boundaries between administrative issues and an independent judiciary
- Handling of complaints against judicial officers
- Issues about the extent to which, and how, judicial officers should take some responsibility for addressing some of the problems they see before them, eg.in legislation, administration or the outcomes for the people who appear before them.
Aim
These programs provide judicial officers with opportunities to consider practical issues which can arise regarding judicial conduct and ethics.
Scope
These programs could encompass:
- Criticism of trial counsel
- Dealing with difficult colleagues
- Self-represented litigants
- Avoiding possible conflicts of interest
- The duty to sit and determine cases
- Conduct in court
- Conduct out of court
- Conflicts of interest
- Ostensible bias
- Disqualification
- Dealing with the media
- Writing references for colleagues or staff
- Invitations to give speeches while a judicial officer and after retirement
- Invitations to practitioners’ or law firms’ social functions
- The impact of judicial conduct on others
The Judicial Role
The focus of these programs is the role of judicial officers to apply appropriate standards of judicial conduct in their work.
Aim
These programs provide judicial officers with opportunities to understand and evaluate how implicit bias affects judicial decision-making, (including uncovering and challenging any implicit biases they themselves might have) considering the need for judicial officers to be impartial.
Scope
These programs could encompass:
- The types of implicit biases
- Self-reflection on the attitudes and values that judicial officers bring to decision-making
- Whether and how implicit biases impact judicial impartiality.
The Judicial Role
The focus of these programs is ensuring judicial officers apply appropriate standards of judicial conduct to their work.
Aim
These programs provide judicial officers with information about, and an opportunity to discuss, issues of public policy as they relate to the judicial function.
Scope
These programs could encompass a wide range of topics, including:
- Dealings with agencies of the executive government
- Dealings with industry and community groups
- Human rights
- The extent to which judicial officers can and should be involved in the policy making process including the legislative process
- The debate in regard to judicial activism – including issues related to the role of courts in society, judicial method, how judicial officers should respond to public criticism, and the materials available to judicial officers on which to base their decisions.
The Judicial Role
The focus of these programs is the judicial role of keeping abreast of developments in public policy which impact on the law and the work of the courts.
Aim
These programs provide judicial officers with an opportunity to deepen judicial officers’ understanding of unconscious bias as it relates to gender, social, cultural or other biases.
Scope
These programs could encompass:
- The nature of unconscious biases
- Tacilitating exploration of judicial officers’ own unconscious biases
- Challenging unconscious biases
Aim
These programs provide judicial officers with an opportunity to consider the relevance of the theory and practice of therapeutic jurisprudence to their work.
Scope
These programs could encompass
- Therapeutic jurisprudence and the judicial role of managing
- Therapeutic jurisprudence and the judicial role of decision making
- Therapeutic jurisprudence in specialist courts
- Criminal cases
- Civil cases
- Family law cases.
The Judicial Role
The focus of these programs is the role of judicial officers, the impact of their actions on those involved in the court process and judging techniques through which judicial officers can promote greater respect for and confidence in the justice system.
Note
This topic may not always be a program in its own right but may be integrated within a wide range of programs.