Address by The Honourable JJ Spigelman AC Chief Justice of New South Wales The Rule of Law Conference, Brisbane, 31 August 2007. (Reproduced by kind permission of The Hon. Chief Justice J J Spigelman AC.)
The topic on which I have been asked to make some
observations is appropriately subsumed in the general theme of this conference.
The rule of law is the ultimate foundation of the three “i’s” of judicial
conduct: independence, integrity and impartiality. In turn, these requirements
are the criteria for judicial appointment. I commence, accordingly, with some
necessarily general observations on the rule of law.
No complex society can operate without the efficient and expeditious performance
of legal functions, by means of direct enforcement of rules and by the deterrent
effect of threatened or possible enforcement.
The sense of personal security of citizens, indeed the existence of social
order, is determined in large measure by the extent to which people can arrange
their personal affairs and their relationships with associates, friends, family
and neighbours on the assumption that basic standards of propriety are met and
reasonable expectations are satisfied. In all spheres of conduct it is essential
that individuals and corporations know that they can pursue their lives with a
reasonable degree of security, both of their person and of their property.
All forms of social interaction, including economic interaction, are impeded by
the degree to which personal and property rights are subject to unpredictable
and arbitrary incursion, so that people live in fear, or act on the basis of
suspicion, rather than on the basis that others will act in a predictable way. A
high level of predictability establishes the requisite social order and the
confidence that one can act in accordance with reasonable beliefs as to one’s
rights and obligations and that reasonable expectations will be met.
The legal system performs a critical role in the promotion of social order by
the administration of the law in a manner which answers the fundamental
requirements of justice namely, fair outcomes arrived at by fair procedures. The
fairness of the procedures is as essential as the correctness or fairness of the
outcomes. When people talk about having their “day in court” this is a matter
that is of significance to their sense of freedom and of personal autonomy.
Those in society who are wealthy or powerful, including but not limited to the
numerous manifestations of the executive branch of government, have other means
of getting their way. What confines those with power, whether in government or
commercial corporations or the media or, in some societies and contexts, social
or religious groups or trade unions, is the effective operation of the rule of
law.
Citizens are entitled to protection from the exercise of the power that others
are able to exercise over their lives. Actual or threatened transgression of
civil rights in society, notably but not limited to the exercise of the police
function of government, are in large measure deterred by the very existence of
an independent legal profession with access to courts consisting of independent
judges. From time to time deterrence does not work and the judicial arm of
government must be invoked, sometimes against other arms of government, both
executive and parliamentary.
The rule of law involves a principle of universality, that is to say every
person however powerful or wealthy is governed by the ordinary law and is
personally liable for anything done contrary to the law. All authority and
power, including all aspects of governmental authority and power, must find an
ultimate source in the law. It is this principle that ensures that the rule of
law differs from the arbitrary exercise of power. All authority is subject to
and constrained by the law.
A second aspect of the rule of law is the concept of boundedness: that the law
is not all encompassing. There is a substantial sphere of freedom of action.
Citizens can only be constrained or punished for violation of the law and in
accordance with the law. Where the law ends, so constraint ends. Judges and
lawyers are boundary riders maintaining the integrity of the fences that divide
legal constraint from the sphere of freedom of action.
The minimum content of the rule of law is that the rights and duties of persons
in the community, and the consequences of breach of any such rights and duties,
must be capable of objective determination. It is only if this is the case that
persons and groups in society can interact with each other with confidence, in
an environment of social order. Judicial independence ensures that any such
determination is, in fact, objective.
Of course the rule of law is not simply a system that contains rules that must
be obeyed. The law is a system to be used by citizens for their own protection
and for their own advancement in their relations with the State and with other
citizens or organisations.
None of this can happen without the active participation of lawyers both by
means of advising people of their rights and obligations and by ensuring that
they are enforced. However, enforcement can only be reliable if there is an
independent forum for the resolution of disputes about rights and obligations.
A society cannot be governed by the rule of the law without an institutionalised
arrangement for the independence of the judiciary. Furthermore, democracy
depends on the courts enforcing what the legislature intended, not what the
Executive wants.
The form of social order which we identify with a society operating under the
rule of law can only exist if laws are administered fairly, rationally,
predictably, consistently and impartially.
Fairness requires a reasonable process of consideration of the rights and duties
asserted. Rationality requires a reasoned relationship between the rights and
duties of the outcome. Predictability requires a process by which the outcome is
related to the original rights and duties. Consistency requires similar cases to
lead to similar results. Impartiality requires the decision–maker to be
indifferent to the outcome.
Any form of improper influence, incompetence, inefficiency or bias is
inconsistent with each of these objectives. Without institutionalised judicial
independence, distortions are inevitable. Without a high level of competence,
integrity and capacity for impartiality on the part of judges, distortions are
inevitable.
As is recognised in the terms of numerous constitutional and international
instruments, judicial independence is a fundamental right of citizens. It is not
some kind of privilege which judges acquire as a perk of office. It is an aspect
of the rule of law. For the reasons I have mentioned competence, integrity and
capacity for impartiality is also an aspect of the rule of law. Judicial
appointments must be understood in this context which is, in the full sense of
the term, constitutional.
The starting point for the impartial administration of justice is some form of
institutional autonomy. An effective judiciary requires a distinct esprit de
corps and its own legitimising traditions. This is often reflected in
distinctive form of dress. The judiciary must be, and be seen to be,
institutionalised, a distinct group performing distinct functions.
There are many choices in the institutional design of the judiciary with respect
to these matters. Insofar as a polity wishes to be a society in which the rule
of law operates, it is essential that the ultimate guardians of the law must
have the level of integrity and the status that enables courts to act as an
effective constraint on the exercise of power and as a competent source of
impartial decision–making.
The judiciary must be independent of any person who may seek to exercise
influence on the outcome of legal proceedings, in any manner and for whatever
reason. Unless that is so, the rule of law is inevitably compromised.
Obviously, the parties to a dispute are the most likely persons who would seek
to exercise such influence. However, persons who wish to manifest their power,
or to pursue a political, religious or social agenda, are all likely to seek to
have their wishes or views implemented in the course of judicial
decision–making. That is, of course, particularly true with respect to judgments
that have broader implications, such as Constitutional decisions, but it is a
form of pressure that could arise in any kind of case. Unless judges are hard to
get at, because of institutional autonomy and personal independence, there will
be no shortage of persons who try to do so.
Judicial independence does not only involve freedom from direct interference. It
also involves freedom from dependence, of a character which may lead to actual,
or even perceived, influence, without the need to exert actual interference.
People who are used to getting their way do not usually take kindly to their
wishes being frustrated. In the past that has included the aristocracy, when it
was the centre of social and economic power. These days such centres of power
include major corporations and the mass media. Throughout history, the executive
branch of government has been such a centre of power.
The threat to independence from the Executive branch is, of course, particularly
acute because the Executive is, in one manner or another, the ultimate source of
power for the appointment of judges, for the administration of mechanisms for
discipline or removal of judges and the source of funding for all aspects of the
administration of justice.
The most significant single aspect of the institutional arrangements for
judicial independence is the need to insulate, indeed to isolate, the exercise
of judicial power from interference or pressure from the Executive branch of
government. To a substantial degree this is simply a manifestation of the need
to ensure impartiality. So far as I am aware, in all jurisdictions, the
hydra–headed Executive branch is the single most frequent litigant in the
courts.
Citizens confront the Executive branch in all its various capacities in the
course of litigation.
• Courts are frequently called upon to determine the validity of executive
action and the constitutional validity of legislation promoted by the Executive.
• Any citizen can be subject to investigation or prosecution by the various
authorities that exercise the police power of the state, not only with respect
to matters that involve allegations of criminal conduct, but also with respect
to the full range of regulations that seek to confine or direct the personal
behaviour of citizens and corporations.
• As taxpayers, citizens are engaged in disputes with revenue authorities.
• As property owners, citizens are engaged in disputes with
the wide range of regulatory authorities that determine what they can do with
their property, indeed whether it can be compulsorily acquired, and if so, at
what price.
• As employees, citizens confront the largest single employer in the nation.
• As persons entitled to legislative benefits, citizens are confronted with the
full range of bureaucratic decision–making processes.
• A significant proportion of injured persons seek compensation from government
agencies such as hospitals, railways, road authorities and police.
• Governmental organisations manifest the full range of commercial interests as
suppliers or purchasers of goods and services from others, which are as much
prone to disputes over property rights or contractual terms as any other
commercial relationship.
It is important that the principle of judicial independence is not stated too
widely. Not every aspect of the administration of justice can be encompassed
within the concept of independence. Not every matter which impinges upon access
to justice or the quality and fairness of adjudication or operates as a
restraint on judicial conduct constitutes a threat to independence.
Necessarily, threats to judicial independence differ significantly from one
jurisdiction to another. It is, accordingly, extremely difficult to generalise
about this matter, although there do appear to be certain common themes in
countries in similar stages of economic development.
There are nations where the enforcement of the protection of the judiciary is
suspect and, in such situations, any individual or group who can threaten the
personal security of a judge or a judge’s family may be tempted to do. Persons
of wealth, of power or those with a monopoly of force, such as the police and
armed forces, may constitute such a threat. In some societies social groups,
notably of a fundamentalist religious character, may have similar inclinations.
Even where no issue of personal security arises, there may be the possibility of
public ridicule and contempt of individual judges or of the judiciary as a
whole. This may be driven by, or reflected in, the mass media, which can mount a
campaign of intimidation of a character short of physical threats, but
nevertheless capable of interfering with the actual or perceived impartiality of
judicial decision–making processes.
There are numerous decision–making processes capable of impinging on judicial
independence. Judges who are selected or promoted on the basis of how they are
likely to decide, rather than on the basis of their professional expertise, may
not disappoint the authorities who select and promote them. Judges who may have
their appointments terminated by a mechanism which does not contain real
restraints, of a formal and informal character, are less likely to be prepared
to offend persons or groups capable of exercising power in their community.
Courts that are continually requesting additional resources from government in
order to perform their functions effectively may prove more likely to be subject
to subtle pressures to achieve particular outcomes in matters of significance to
those who control the resources. Judges who are inadequately remunerated, given
the economic circumstances of their particular nation, are subject to
temptations which may be difficult to resist. Similarly, in the case of judges
who are not accorded the status required to ensure that the administration of
the law in their society is regarded as a matter of constitutional significance.
A judiciary which is accorded a low status and, accordingly, a low level of
respect in its community, will be less likely to have the level of competence
and impartiality required for the effective administration of justice.
Often the most significant point of pressure on members of the judiciary comes
from public pressure, particularly as reflected in the media which, in turn,
influences politicians. Objectivity, impartiality, adherence to legal principle
and precedent and maintenance of equality before the law can all be compromised
by the extent to which judges respond to actual or anticipated pressure.
Judges are human and it is appropriate to be concerned and to ask whether the
anticipation of public hostility is adversely affecting the objectivity and
neutrality of the administration of justice, even if unconsciously. Fortitude is
required. A principal source of strength is the bond of collegiality, often
developed in practice at the bar where, that most important of judicial virtues
– the capacity for detachment – is also inculcated. However, fortitude is not
enough in the long term. We must be concerned with structural issues of
institutional design.
In many nations respect for authority has diminished over recent decades to a
significant degree. Judges are not alone in this. Public sector remuneration has
declined when compared with rewards in the private sector. Again judges are not
alone in this. The pressures of public life when compared with private endeavour
– parading under the twin banners of accountability and transparency – deter the
most competent and successful lawyers from assuming the responsibility of public
life. Again, the judiciary is not alone.
Heightened standards of accountability – with respect to both the use of public
resources and the integrity of public decision–making – requires the judiciary
to explain and defend itself in ways which would once have been regarded as an
affront to its dignity and, perhaps, to its independence. I am not talking about
that development.
What concerns me is the fact, discernible in many jurisdictions, that the
judiciary is subject to transient rages and enthusiasms, generally ill–informed
or partly informed, designed to influence judicial decision–making either on
appeal or in future cases and which may also influence judicial appointments.
The judiciary’s traditional reticence to engage in public debate makes it a soft
target. We have not developed an institutional alternative to the rigorous
defence of the judiciary by Attorneys General who are able to detach themselves
from the political melée.
In many different jurisdictions, the political capacity, or the political will,
to resist contemporary pressures has been attenuated or has broken down. The
institutional mechanisms that protected the judiciary in the past are showing
signs of strain.
Generally, the judiciary has manifested a high level of resilience in the face
of ill–conceived and unsupported allegations that judges are out of touch with
community values. However, personal resilience is not enough to maintain the
level of integrity, impartiality and independence that the rule of law requires.
If these trends continue we may need to develop new mechanisms to protect the
integrity of judicial decision–making and our longstanding ability to attract
the best lawyers to the judiciary.
I do not intend to enter the debate about models for judicial appointment
procedure. It is sufficient for me to observe that there is no single model
applicable to every jurisdiction. There are strengths and weaknesses in all the
models.
What is appropriate in England, where the Lord Chancellor has to make hundreds
of appointments per year in a nationally integrated judicature, is not
appropriate for, say, Tasmania where in some years there is no appointment at
all. Similarly, procedures such as advertising or otherwise seeking expressions
of interest which are appropriate for a large jurisdiction, such as a Local
Court, where unexpected people may prove to be interested, are not appropriate
for a Supreme Court, let alone for the Chief Justice of that Court.
Everyone agrees that judicial appointments should be based on merit. There is
less unanimity on precisely what that means and how, or by whom, it should be
assessed.
There are a wide range of judicial virtues: legal learning, trial experience,
wisdom, compassion, clarity of thought and expression, robust independence,
capacity for detachment, impartiality, attentiveness, diligence, common sense,
strength of character and administrative skills. This is a diverse skill set of
essentially incommensurable matters. There is no means of reducing them to a
single metric.
It is possible to attain a reasonably broad consensus about the persons who are
appropriate appointees. However, there are very few, if any, occasions on which
a single person will stand out as the obviously best appointment. In my opinion,
no mechanism is necessarily better than any other in balancing and assessing the
wide range of attainments to which I have referred. Success necessarily depends
on the background and character of whoever must formulate the judgment,
recognising that it is a judgment on which reasonable people will differ. I do,
however, wish to express my scepticism that it is a task capable of being
performed by a committee.
Whatever mechanism is chosen for judicial appointment the process of selection,
by whomsoever it is performed, must be guided by the proposition that the above
judicial virtues are required so that laws are administered fairly, rationally,
predictably, consistently and impartially. These are requirements of the rule of
law, as the theme of this Conference correctly emphasises.