A National Curriculum for Australian Judicial Officers
Unit Five Judicial Reasoning and Decision Making
Rationale
Giving reasoned decisions is the essence of the work of a judge. Professional development activities should help judicial officers to deliver oral judgments and write well-composed judgments. Part of the judicial role is also to give directions to juries. Although this does not involve the judicial officer in making a decision, it does involve the judicial officer giving the jury the means whereby it might make a correct decision.Aim of this Unit
Professional development activities should help judicial officers –
- to make decisions during the course of matters before the courts
- to make decisions as part of the process of composing a judgment, whether in written or oral form
- to write judgments
- to provide directions to juries to enable them to make a decision
Application of the Core Dimensions
Substantive and Procedural Law
Programs in this unit may cover the legal principles underlying judicial decision making (eg relevant administrative law principles, evaluating the relevance and weight of evidence)
Judge Craft Skills
Programs may cover strategies for delivering effective oral and written judgments; managing workload to avoid backlog of reserved decisions;
Social Context
Programs in this unit may cover an understanding of the neurobiology of how judges brains work and how reasoning can be affected by social context awareness
Attitudes and Values
Programs may cover unconscious biases and how to mitigate their effects when making decisions
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
5.1 - Principles and Practice of Decision Making
Aim
These programs help judicial officers to make informed and sound decisions both during the course of a matter before the court and in the process of preparing a judgment or directions to a jury.
Scope
These programs could encompass –
- a logical process for effective decision-making
- decisions on factual issues
- decisions in interlocutory and routine matters
- using decision-making powers to deal with dilatory practices in the courts and to ensure cases are disposed of expeditiously
- research as part of the process of decision-making
- evaluating the relevance and importance of evidence
- understanding the impact of personal values and cultural belief systems on decision-making.
- Tone, audience and narrative in judgment writing and oral decisions
The Judicial Role
The primary focus of these programs is the judicial role to make decisions and give reasons for decision, both written and oral. A secondary focus is the judicial role to manage efficiently the cases before them, the court room and the work which takes place outside the court room.
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.