Ethical Infrastructure for a Modern Judiciary

DOI10.1177/0067205X19856500
Publication Date01 September 2019
Date01 September 2019
AuthorGabrielle Appleby,Suzanne Le Mire
SubjectArticles
Article
Ethical Infrastructure
for a Modern Judiciary
Gabrielle Appleby* and Suzanne Le Mire**
Abstract
The ethical conduct of judicial officers has been traditionally seen as a matter for individual judges
to determine for themselves. Today, judges are still frequently left to consider ethical dilemmas
with little formal institutional support. They must rely on their own resources or informal advice
and counsel from colleagues and the head of jurisdiction. This article will explore whether this
arrangement continues to be appropriate. We consider a hypothesis that a number of factors,
including the growing numbers and diversity of the judiciary mean that it is less likely that there will
be common understandings of the ethical values to be employed in resolving difficult dilemmas.
Thus, we further hypothesise, the traditional arrangements are likely to prove insufficient. Drawing
on the findings of a survey of judicial officers across Australian jurisdictions conducted in 2016, we
test these hypotheses by reference to the perceptions of Australian judicial officers as to the
adequacy of the ethical support available to them. Finally, we consider the variety of supports that
are available in comparable jurisdictions and also in the legal profession, before turning to possible
solutions to the question our hypotheses raise, including the introduction of ‘ethical infra-
structures’ in the form of more formal arrangements that provide ethical guidance to judges. We
argue that these ethical support mechanisms have the potential to enhance the quality of ethical
decision-making and foster an ethical culture within the judiciary.
Introduction
Traditional values, such as those encapsul ated by the concep ts of judicial inde pendence and
impartiality, rightly remain central to the work and regulation of judicial officers. At the same
time, other more contemporary values are clamouring for attention: legitimacy, transparency,
accountability, representativeness and efficiency.
1
The creation of frameworks that incorpo-
rate these values can encounter resistance as they may be seen to pose significant challenges
to the more traditional values. This tension can be seen in the attempts to incorporate a more
* Professor, UNSW Law, Co-Director, The Judiciary Project, Gilbert þTobin Centre of Public Law. The author may be
contacted at g.appleby@unsw.edu.au.
** Professor,Adelaide Law School, Universityof Adelaide. The author may be contactedat suzanne.lemire@adelaide.edu.au.
Our thanks to AndrewLynch and Brian Opeskin, who worked with us on a surveyfrom which we have extracted the data
consideredin Part 2 of this article.We are also grateful to AnselmoReyes, Simon Youngand Jamie Hanson, whose comments
on earlier versionsof this article were very helpful.
Federal Law Review
2019, Vol. 47(3) 335–357
ªThe Author(s) 2019
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DOI: 10.1177/0067205X19856500
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diverse and representative judiciary as well as enlarging the bench. Both of these changes
pose challenges to the traditional, informal frameworks for ethical support within the
judiciary.
The ethical conduct of judicial officers has been traditionally seen as a matter for individual
judges to determine for themselves. This has been justified as an important dimensi on of the
protection of the independence of the ju diciary: both from the influence that mi ght originate
outside the judicial branch and from the influences of other judges within it. Under that traditional,
individualised system, ‘professional osmosis’, that is, the ‘example and influence of respected
peers’, assisted them.
2
The 18 rules for judges set down by Lord Hale in about 1660 were a notable
early exception to this standard approach (these included the exhortation that judges should be
‘short and sparing at meals ’).
3
Since that time the Bangalore Princip les of Judicial Conduct,
developed by the international Judicial Integr ity Group and adopted by a roundtable of chief
justices drawn from across the globe in 2002, have attempted to provide a unifying set of principles
for the world’s judiciary. These state that they
[a]re designed to provide guidance to judges and to afford the judiciary a framework for regulating
judicial conduct. They are also intended to assist members of the executive and the legislature, and
lawyers and the public in general, to better understand and support the judiciary.
4
Today in most jurisdictions, pronouncements on ethics are simply offered as guidance, with
clear stipulations that they should not be used as part of any formalised and structured
accountability and disciplinary processes.
5
In other jurisdictions more assertive steps are taken
to control judicial conduct with ‘ethical codes’ being compulsory, backed by the prospect of
disciplinary proceedings.
6
Within both models, these instruments and exhortations aside,
judges are still frequently left to consider ethical dilemmas with little formal institutional
support. This article will explore whether this arrangement is appropriate in modern times for
the Australian judiciary, particularly in view of its current makeup with an enlarged and more
diverse membership.
In Part I of this article, we open by defining our key terms before explaining the traditional,
informal arrangements for providing ethical guidance to judicial officers through advice and
counsel from colleagues and the head of jurisdiction. This part also explores a hypothesis that a
number of factors, including the growing diversity of the judiciary — in terms of gender, race,
ethnicity, religion, sexuality, class, education, age and geographic region — mean that it is less
likely that there be common understandings of the ethical values to be employed in resolving
difficult dilemmas. Thus, we further hypothesise, the traditional arrangements are likely to prove
insufficient. In Part II, drawing on the findings of a survey of 138 judicial officers across Australian
jurisdictions that was conducted in 2016, we test these hypotheses by reference to the perceptions
of Australian judicial officers to the adequacy of the ethical support available to them. In Part III,
we turn to possible solutions, including the introduction of what have been referred to as ‘ethical
infrastructures’,
7
that is, ‘formal and informal management policies, procedures and controls, work
team cultures, and habits of interaction and practice that support and encourage ethical beha-
viour’.
8
This could include an institutional approach, that is, the introduction of formal mechan-
isms for ethical guidance such as committees that provide ethical support to judges. Ethical
infrastructures in this form have been implemented in some jurisdictions, although not necessarily
for the reasons we have identified.
336 Federal Law Review 47(3)

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