A National Curriculum for Australian Judicial Officers
Unit Four Vulnerable People in the Courtroom
Rationale
Vulnerable people can be involved in the court process as a plaintiff, defendant, accused person or witness. Moreover, people can be ‘vulnerable’ in different and sometimes overlapping ways. Judicial officers must be conscious of these vulnerabilities, avoid stereotyping individuals on account of particular vulnerabilities or disadvantage and appropriately manage proceedings in which vulnerable people are involved.Aim of this Unit
Programs in this unit should provide judicial officers with the knowledge and skills to manage proceedings in which vulnerable people are involved.
Application of the Core Dimensions
Substantive and Procedural Law
Programs in this unit may cover substantive law (such as procedural fairness) and procedural matters.
Judge Craft Skills
Programs might cover practical suggestions for facilitating self-represented vulnerable litigants’ participation in court proceedings without ‘descending into the arena’; particular requirements for child and vulnerable witnesses;
Social Context
Programs might cover the social context of and misconceptions about vulnerable people and groups
Attitudes and Values
Programs in this unit may wish to include a consideration of various societal attitudes and values towards vulnerable groups and how the personal attitudes and values of judicial officers may have been influenced by these societal views. Programs developed under this unit may wish to consider exploring the application of the principles of equality and fairness in a diverse society.
Core Judicial Qualities
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
Programs
4.1 - Self-represented Litigants
Aim
These programs help judicial officers to be aware of and understand the legal and practical issues which will confront them in dealing with litigants in person and to develop strategies for dealing with them.
Scope
These programs may encompass –
- a review of legal and practical issues including the rules and practices for accommodating self-represented litigants
- a review of published work, by courts and other organisations, in relation to such litigants
- the provision of data to participants on the extent of self-represented litigants in the courts and on the impact on court work
- practical advice on how to deal with various situations
- self-represented litigants in pre-trial hearings and in trials
- differences in trials without juries and those with juries
- self-represented litigants and the use of interpreters
- difficulties in certain types of trials, eg. sexual offence trials
- consideration of abnormal and querulous litigants from a psychiatric perspective and strategies for dealing with them.
The Judicial Role
The primary focus of these programs is the fair and efficient management of cases involving self-represented litigants.
Judicial conduct and ethical issues may arise.
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.