Reforming Responses to the Challenges of Judicial Incapacity
| Author | Alysia Blackham,Andrew Lynch |
| DOI | 10.1177/0067205X20905963 |
| Date | 01 June 2020 |
| Published date | 01 June 2020 |
| Subject Matter | Articles |
Article
Reforming Responses to the
Challenges of Judicial Incapacity
Andrew Lynch* and Alysia Blackham**
Abstract
Judicial incapacity, while under-researched, presents unique challenges for supporting and
responding to issues of judicial performance. In this article, we argue for a reconceptualisation of
this topic based on contemporary theories of socially-constructed disability and principles of anti-
discrimination law. While assisting and supporting judicial officers who are attempting to work
with a disability or ongoing health issue will always be complex, this reconceptualisation offers
heads of jurisdiction, conduct commissions and parliamentarians, who retain the ultimate sanction
of removal, the opportunity to craft a surer guide for handling cases of incapacity. This will not only
better serve the individual concerned, affording them greater agency and dignity than has tradi-
tionally been the case, but also protect the principle of judicial independence.
I Introduction
Judicial incapacity is a problem of growing relevance for the Australian judiciary. In a 2016 survey
of 142 Australian judicial officers, 77%of respondents agreed that ‘it would be appropriate for
judicial officers to be asked to undergo capacity checks at the request of a Head of Jurisdiction or a
relevant body constituted by judges’, and only 12%expressed any disagreement.
1
Judges respond-
ing to that survey made a number of pointed comments, emphasising the practical and philoso-
phical difficulties raised by judicial incapacity for judges and their colleagues. For one judge,
judicial incapacity was seen as a ‘very vexed issue [that] would require extraordinary sensitivity
and safeguards’.
2
Another noted, ‘[a]lthough comparatively rare, senile judges present real prob-
lems. The existence of a formalised structure would make it easier to deal with’.
3
For respondents,
* Professor, Gilbert þTobin Centre of Publi c Law, Faculty of Law, UNSW. The author m ay be contacted at a.lynch@
unsw.edu.au.
** Associate Professor and Discovery Early Career Research Fellow, Melbourne Law School, The University of Melbourne.
The author may be contacted at alysia.blackham@unimelb.edu.au. The authors acknowledge the assistance, at different
times over several years of researching this topic, of Emily Burke, Isabel Chong and Hernan Pintos-Lopez.
1. Gabrielle Appleby et al, ‘Contemporary Challenges Facing the Australian Judiciary: An Empirical Interruption’ (2019)
42(2) Melbourne University Law Review 299, 354.
2. Ibid.
3. Ibid.
Federal Law Review
2020, Vol. 48(2) 214–246
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then, judicial incapacity is a live problem that demands a better, more structured response than it
currently receives.
Despite this clear signal that judicial incapacity is seen as an area of contemporary challenge to
the judiciary, one that raises a particular range of sensitivities and ethical issues, it has received
only very limited recognition in the Australian literature. Instead, the focus has often been upon
judicial misbehaviour, a term that is c apable of very broad application. Des pite some earlier
assertions to the contrary in Australia, judicial misbehaviour is not limited to actions undertaken
in the course of judicial duties nor to conduct off the bench that would result in a criminal
conviction.
4
Accordingly, the scope for complaints of judicial misconduct is broad and eludes any
attempt at comprehensive prescription in advance.
5
However, what is clear is that misbehaviour,
and the question of whether a judge may be removed from office for failing to satisfy the condition
of ‘good behaviour’ upon which his or her constitutional security of tenure depends, is inherently
concerned with questions of professional propriety and ethical conduct. Assessing many allega-
tions of this kind will require recourse to those generally accepted standards of professional
behaviour that are viewed as necessary for the maintenance of public confidence in the courts.
This is just as true for misconduct that does not warrant the ultimate sanction of removal but might,
depending on what arrangements are in place, attract some lesser response, such as referral to an
investigatory complaints body, a reprimand or pastoral counselling. To put it simply, a discussion
about judicial misbehaviour—of whatever degree of seriousness—is a discussion about judicial
ethics.
By contrast, the ethical dimensions of judicial incapacity, often expressly provided for as an
alternative constitutional ground for removal, are of a very different order. While misbehaviour
arises directly from a breach of judicial ethics, incapacity, lacking an intentional element, does
not.
6
Incapacity may occasionally manifest in behavio ur that looks like, and may be initially
regarded as, misconduct, but it is obviously not accurate simply to describe the judge as having
acted unethically.
7
On those occasions, the breach of an accepted standard of professional conduct
is but a symptom of the real problem; it is not the problem itself. Thus, there is a need for a
structured process to respond to incapacity, which acknowledges its particular challenges.
The limited attention given to the topic of judicial incapacity is puzzling for several reasons.
First, there have been a number of troubling episodes over the last two decades, some discussed
below, in which the difficulty of identifying and responding to judicial incapacity has been starkly
apparent.
Second, physical or mental impairment would seem just as, if not more, likely to arise than
instances of intentional wrongdoing or misconduct. A well-placed faith in the high professional
and ethical integrity of the Australian judiciary means that ‘misbehaviour’, while never out of the
question, must still be a surprising occurrence. Conversely, judicial officers are, at least in terms of
physical and mental health, human beings, the same as everyone else.
4. Rosemary Laing (ed), Odgers’ Australian Senate Practice: As Revised by Harry Evans (Department of the Senate, 14
th
ed, 2016) 705.
5. This is not to ignore the utility of guides to judicial conduct, but these themselves tend to emphasise that they are not
intended to be prescriptive. See, eg, Australasian Institute of Judicial Administration, Guide to Judicial Conduct (3
rd
ed,
2017) 1 [1.1]. See further Gabrielle Appleby and Suzanne Le Mire, ‘Judicial Conduct: Crafting a System That Enhances
Institutional Integrity’ (2014) 38(1) Melbourne University Law Review 1, 51–3.
6. Appleby and Le Mire (n 5) 9.
7. Ibid 24, 59.
Lynch and Blackham 215
Third, an increased incidence of poor health or impairment among the judiciary must be a likely
consequence of the expansion in number of the modern judiciary.
8
The judiciary is obviously not
immune from the physical and mental health issues that are found in the general population. It has
been suggested for some time that the heavy workload and stresses of judicia l office exact a
particular toll upon those serving on the bench.
9
But while Australian research confirms that
psychological distress, overuse of alcohol and burnout are certainly issues facing the judiciary,
it also found that lawyers reported rates of depression, anxiety and stress symptoms more than
three times those found for judicial officers who participated in the study.
10
This research com-
plements earlier examinations of practising lawyers. A 2007 study found that lawyers in Australia
are more likely to suffer from moderate to severe depression than any other profession.
11
Addi-
tionally, ‘legal professionals were also more likely to use alcohol and other drugs to reduce or
manage feelings of sadness and depression when compared with the other professional groups’.
12
A national survey of Australian legal practitioners also confirmed ‘a remarkably high level of self-
reported stress and negative emotional states’.
13
The fact that the judicial study posits that th e legal professi on is far more at ri sk than the
judiciary is not exactly a source of comfort. Although the authors suggest three reasons why
judges report less severe mental health issues than the profession,
14
it is hard to view the two
groups as entirely distinct given that one is drawn from the other ; and the problems are ones that
might be expected to have some potential for transference. Additionally, the more socially
isolated nature of judicial work and the particular responsibility that it carries may present
altogether new causes of stress. Indeed, in the survey by Appleby and her coll eagues of Aus-
tralian judges, some respondents noted that high workloads and resulting stress affected judges’
physical and mental health.
15
Workload is an issue that affects growing numbers of the judiciary,
across all levels of seniority and all age bands.
Fourth, in the context of emerging calls to consider the position of judges as individuals, with
their own employment rights and workplace needs,
16
and growing scrutiny of potential
8. See, eg, Commonwealth, Parliamentary Debates, House of Representatives, 5 September 2005, 18 (‘Duncan Kerr’).
9. See, eg, Susan Denham, ‘The Diamond in a Democracy: An Independent, Accountable Judiciary’ (2001) 5(1) Judicial
Review 31, 38; Michael Kirby, ‘Judicial Stress’ (1995) 13(2) Australian Bar Review 101, 104–13 (‘Judicial Stress’).
10. Carly Schrever, Carol Hulbert and Tania Sourdin, ‘The Psychological Impact of Judicial Work: Australia’s First
Empirical Research Measuring Judicial Stress and Wellbeing’ (2019) 28(3) Journal of Judicial Administration 141,
163.
11. Beyond Blu e, Annual Professions Survey: Research Summary (April 2007) Judicial College of Victoria 2–3
<https://www.judicialcollege.vic.edu.au/sites/default/files/2019-07/2007%20-%20Beyond%20Blue%20-
%20Annual%20Profess ions%20Survey.pdf>. Encouragingly, four years later, lawyers ‘reported the highest levels
of mental health training’ of the professions surveyed and were ‘the professional group most likely to have
completed the Beyond Blue National Workplace Program training’. However, in 2011 ‘compared to other
professions, lawyers felt their organisations were less likely to actively help an individual seek treatment’:
Beyond Blue and Beaton Consulting, 2011 Annual Business and Professions Survey: Research Summary (May
2011) 3 <https://das.bluestaronline.com.au/api/BEYONDBLUE/document?token¼BL/0903>.
12. Beyond Blue (n 11) 3.
13. Janet Chan, Suzanne Poynton and Jasmine Bruce, ‘Lawyering Stress and Work Culture: An Australian Study’ (2014)
37(3) University of New South Wales Law Journal 1062, 1063.
14. Being the differences in the work, the aptitude shown by those selected for judicial office and the mature age of judicial
appointment: see Schrever, Hulbert and Sourdin (n 10).
15. Appleby et al (n 1).
16. Alysia Blackham, ‘Reconceiving Judicial Office through a Labour Law Lens’ (2019) 47(2) Federal Law Review 203.
216 Federal Law Review 48(2)
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