Apart from judges, how many other decision-makers are obliged, as a matter of routine, to state, in public, the reasons for all their decisions?
Towards the end of last year, the Australian Financial Review (AFR) published a series of articles dissecting the productivity of judges of the Federal Court of Australia based on published judgments, as measured by average words written per day, average paragraphs per day, and average days to deliver judgment.
Individuals were ranked in a table and the suggestion was made that the speed of justice was unjustifiably slow. The blame was placed squarely on the judges on the basis that “the data suggests that [they] could finish their cases more quickly by better time management”.
In response to criticism of their methods from legal and judicial organisations, including the Court itself, the AFR hit back. They said, “Many professions and industries are assessed using quantitative measurements”, and that “bankers, stockbrokers, doctors, sportspeople, entertainers and business owners know this”. Even at the AFR, every reporter’s performance “measured by the popularity of their articles over any time frame, can be seen by any editorial employee”. It concluded that, as compared to Members of Parliament and Ministers, who are subject to “intense scrutiny of their performance, often on a daily basis”, the “judiciary is the least accountable” of the three arms of government.
A few weeks later, the leader of the Opposition in Victoria made an election promise of “greater accountability and scrutiny” of judges in that state. He promised to publish “performance information” of individual judges, including their “sentencing records” – I assume meaning what sentences they gave for particular offences – and the number of their judgments overturned on appeal. He stated that the intention of these reforms was to “see exactly what sort of sentences individual judges and magistrates are imposing for what sorts of crimes” because “there is no reason for denying the public this important, basic factual information about how judges and magistrates are performing their roles”.
The impression to be gained from the proposal was the same expressed more explicitly by the AFR: that the judiciary is at present unaccountable in a manner contrary to the public interest.
Because I have the greatest respect for the AFR, I am going to resist the temptation of considering what would happen if parliamentarians, doctors, bankers and perhaps even the AFR itself were judged on the metrics suggested. But, just a few examples: suppose parliamentarians were judged by the number of speeches they made, or the number of 30-second grabs per day they did. Some might say a chatty politician is a good politician. Others might say, “I just wish he or she would shut up”.
Let’s take the AFR itself. It is common knowledge that every subscriber turns first to “Rear Window” to read about the latest corporate gossip. But that does not mean the AFR should simply consist of a gossip column. No-one would subscribe to it if it was. This really shows the difficulty with pure quantitative analysis. For a more serious example, we could take doctors. No-one would want to judge the performance of doctors by the number of patients they see on a given day. That is plainly not necessarily the measure of a good doctor. And I don’t think, at least these days, a good banker would be judged by the profits he or she earns, or by the salary or bonuses which he or she receives – certainly not if Mr Hayne has anything to say about it.
Quantitative analysis certainly has its place. But, in the case of the judiciary, and I think most professions and businesses, what accountability – or a deficit of accountability – requires is a far more nuanced approach.
It is to this proposition that I now want to turn — to whom are judges accountable? And for what, and in what ways? More to the point, just how unaccountable are they?
In terms of whom, at one level the function of the judiciary is to resolve disputes between parties by the application of the law to facts. To that extent, they are accountable to the parties in any given case. However, as has been said on many occasions, the judiciary is not simply a publicly-funded provider of dispute resolution services; it is the third branch of government. It performs the governmental function of enforcing legal rights and obligations to the benefit of society as a whole. It must therefore be accountable to the public at large, whose interests it exists to serve and, I might add, who fund its operations.
What does accountability mean? At its heart, the concept is simple: it is the obligation to give reasons or an explanation for decisions or conduct. The perception that the judiciary is unaccountable is, I think, grounded in a misconception that accountability must come with a “sacrificial” element: that is, where those reasons or explanations are inadequate, a sanction, penalty, or dismissal must follow.
Except in cases of proved misbehaviour or incapacity, judges are shielded from “sacrificial” accountability by security of tenure, which is the ultimate guarantee of judicial independence and, in turn, the separation of powers. I will return momentarily to the importance of this, but I first want to outline why it is misleading to point to the lack of “sacrificial” accountability as if it is sufficient to prove the claim that judges are unaccountable. In fact, the concept is far broader than that, and can involve a variety of different processes and methods.
Professor Graham Gee, in the United Kingdom context, has noted that there is also “explanatory” accountability in the sense of a duty to explain or justify, “content” accountability in the sense of responsibility to an appellate court for the substance of a decision, and “probity” accountability, which includes accounting for the expenditure of money. Judges, both individually and collectively, are subject to accountability in all these forms.
First, in adherence to the “open court” principle, judges conduct almost all the business of judging in public. The High Court has said the rationale of that principle “is that court proceedings should be subjected to public and professional scrutiny”. Bentham, many years before, said that “publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity”. This is because exposure to public scrutiny and criticism creates an environment in which abuses are less able to flourish undetected.
In exceptional circumstances, courts do act contrary to the “open court” principle. Those exceptions are limited, but exist for good reason, such as where the proceedings are being brought in relation to trade secrets or in matters affecting national security. In general, however, courts function in public, even where it might be painful or humiliating for the parties. These things are endured because on the whole, public trials are the “best security for the pure, impartial and efficient administration of justice”.
Second, judges must give reasons for their decisions. This is a defining feature of the judicial process and, as a form of accountability. As former Chief Justice Gleeson asked, “Apart from judges, how many other decision-makers are obliged, as a matter of routine, to state, in public, the reasons for all their decisions?” The other two arms of government have, in recent years, subjected themselves to greater transparency with the advent of legislation to compel the production of government information. However, this has long been “in the nature of things” for the courts.
It is somewhat ironic that the claim that the judiciary is the least accountable branch of government emerged from a publication which, in the next breath, was able to report the words and paragraphs per day that individual judges were apparently producing, using publicly-available information.
Reasons also promote good decision-making. As a general rule, being obliged to explain a decision in a manner open to scrutiny is more likely to result in a reasonable decision which, in turn, is more likely to be acceptable to those whom it affects. It is also consistent with the requirement of (and I quote from Murray Gleeson again), “a democratic institutional responsibility to the public that those who are entrusted with the power to make decisions, affecting the lives and property of their fellow citizens, should be required to give, in public, an account of the reasoning by which they came to those decisions”.
The public nature of those reasons is also significant, as they are thereby exposed to contemporaneous analysis by not only the public and the media but also the legal profession. While these mechanisms of accountability are informal, they are nevertheless powerful. Judges must publicly accept responsibility for their decisions, and it is not inconsequential to have your work subjected to intense public criticism, or indeed collegiate disapproval from other judges or lawyers.
Third, most decisions can be subject to the appeal process, whereby decisions are formally reviewed. One of the points made by the AFR was that, while judges say they are “subject to a rigorous appeals process”, “judgment by peers is, by definition, not independent”.
This is a view that warrants strong resistance. Judges take an oath, or make an affirmation, to do right according to law, independently, “without fear or favour, affection or ill-will”. This applies whether it be favour towards a party, or favour towards a fellow judge, when the correctness of their decision is subject to appeal. The suggestion that they would do otherwise is not an allegation to be made lightly, and is easily refuted by the simple fact that appellate courts do frequently overturn the decisions of inferior courts.
There is one further point which can be made. What is the alternative to “judgment by peers” in these circumstances? A decision on a matter of public interest can provoke a wide variety of views. Is a judge right if, as a result of an Ipsos poll, a majority find his or her decision acceptable, or is he or she right if the law is correctly applied to the facts? I want to suggest the latter.
Fourth, judges’ reasons for decision are also exposed to the legislature, which can, in response, change the law. Now, more so than ever, the bulk of the work of judges in this country involves applying statutes enacted by democratically-elected legislatures. Where the results of that process prove unacceptable to the public, it is open to the legislature to change or clarify the law.
Finally – and this goes to “probity” accountability – the judiciary must account for the public resources it uses. The Supreme Court of New South Wales presents an annual review on its stewardship of the resources entrusted to it. It includes information on the timeliness of each Division of the Court, as measured against national benchmarks, as well as listing delays in each Division. It also includes statistics on the number of matters filed in the Court and how many cases remained pending at the end of the calendar year. The Department of Justice also furnishes an annual report which includes detailed financial statements. Legislation in some states imposes similar statutory reporting obligations on their courts.
The point I am trying to make from all this is simply that the suggestion that the judiciary is unaccountable, or even the least accountable arm of government, is, in my opinion, misconceived. Judges have “explanatory” accountability in their obligation to provide open, public justice and reasons explaining their decisions, “content” accountability in terms of the appellate process, and “probity” accountability in terms of their use of public resources.
What they don’t have is “sacrificial” accountability, by reason of their security of tenure. Unlike the legislature and executive, the public isn’t afforded the opportunity to boot us all out every three or four years. However, as former Chief Justice Doyle has argued, the content of “accountability” varies according to its context. The judiciary is accountable in a way that is compatible with the precepts of judicial independence.
What to make of all this? First, courts are, and should be, subject to public scrutiny, and where appropriate, criticism. To facilitate that scrutiny and to assist in ensuring that criticism is informed, courts should operate as transparently as possible. In that way, they become accountable to the other arms of government, and to the public. But the appropriate measure of accountability cannot be determined solely by some form of quantitative analysis of a court’s output. What must be considered is whether the courts are performing their role of fairly and impartially administering justice according to law, a function essential to the rule of law, and to the maintenance of a just and democratic society.
Quantitative analysis does have a role to play, providing that the inherent limitations of any particular form of such analysis is recognised, and providing that it is recognised that such an analysis provides no real measure of accountability unless it assists in answering the critical question: are courts and their judges performing their function of administering justice according to law?
I would only like to add one last thing: after all that I have said, I am still a reader of the AFR.