Accountability of the Australian Courts

Booklet 16

Define accountability

The requirement that public officials are directly and indirectly answerable to the people for their conduct.

What is an Appeal?

An application to a superior court to review and change a decision made by a lower court, often because of a legal or procedural error.

What is judicial independence?

A democratic principle that requires judicial power to be exercised free from legislative and executive influence.

What is a censure?

A formal expression of disapproval for a judge’s conduct, typically made by one or both Houses of the Commonwealth Parliament.

What is parliamentary sovereignty?

The principle that the Commonwealth Parliament is the supreme law-making body in Australia, deriving its authority from the will of the people, as expressed in democratic elections.

What is meant by open government?

The principle that the business of government should be made available for public scrutiny, supported by a free flow of information.

What is meant by public confidence in the courts?

The general acceptance of judicial decisions by the public and government, which is essential for maintaining peace, order, and good governance (POGG).

What is meant by transparent (court) processes?

court processes and procedures that are open, visible, and understandable to ensure fairness and public confidence in the judiciary (e.g. open court hearings).

What is the point of the court heirachy?

Enables the appeal process which is the most common form of judicial accoutantability.

What occurs if an appeal is successful?

Original conviction quashed.

Do judges perform their role publicly?

Yes, and all their reasons are published.

What do appellete judges do when hearing an appeal?

Appellete judges scrutinise original decision and reasonings.

How is the appeal process a powerful accountability measure?

• check on the quality of the original decison - capacity of the judge who made it.

• correct miscarriages of justice (wrongful convictions).

• set precedents (binding on lower courts for future decisions).

• ensure courts fulfil their function of delivering fairness when resolving legal disputes.

How does the prospect of appeals incentivise lower court judges?

High rates of successful appeals from an individual judges is an indication of performance concerns - judges do not want successful appeals, therefore they ensure decisions are correct to the best of their ability.

What are the limitations for appeals becoming successful?

appeals must be based on legally recognised grounds (error in fact, rerror of law).

Do parties have a right to appeal?

Yes, in lower courts (NOT HCA).

Which court has ultimate appellete jurisdiction in Australia?

The High Court of Australia - s72 of the Constitution.

How does a party seek appeak with the HCA?

Apply for special leave (special permission to proceed).

What regulates special leave with the HCA? What is the criteria?

Commonwealth legislation.

e.g. Section 35A of the Judiciary Act 1903:

• the matter is of public importance (e.g. due to its future application as a precedent).

• the High Court is required to resolve differences of opinion between courts.

• the administration of justice requires the High Court to hear the appeal (e.g. miscarriages of justice).

As of 2022, how may grants of special leave have been successful?

13%

How many successful applications of special leave usually win appeal in the HCA?

57%

Briefly outline Pell v Queen [2020] HCA

• 2017 Archbishop George Pell charged with multiple counts of sexual assualt

• Victorian County Court convicted him of 5 charges

• Pell appealed to Victorian Supreme Court, arguing verdicts were not supported by evidence, Court upheld decision (2:1 ruling)

• 2019, Pell applied to HCA for special leave on two grounds:

  • Court erred by requiring Pell to prove that his offending was imposible in order to raise reasonable doubt (violated presumption of innocence)

  • Court erred by finding judry’s verdicts reasonable, as there was still reasonable doubt based on evidence presented in initial trial

• 202, HCA allowed appeal, quashing convictions (overturned)

• HCA criticised Court of Appeal for acting as the “duplicate.. of the judiciary” by reviewing recorded witness testimony

What is meant by judicial immunity?

A common law principle that protects judges from civil liability for actions taken in their official capacity, such as making court orders and sentencing decisions.

Briefly outline Vasta v Mr Stradford [2025] HCA

• 2018, Judge of the Federal Circuit Court, sentenced Mr. Stradford to 12 months imprisonment due to failure to provide request documents

• Federal Court ruled Judge Vasta failed to exercise his proper jurisdiction (affront to natural justice)

• Mr. Stradford sued Judge Vasta for wrongful imprisonment

  • Court held judge of an inferior court was not protected by judicial immunity

• HCA held judicial immuity protects all judges from civil liability when exercising their judicial function

What is the Chief Justice? What is their role?

Most senior judge in a level of courts in a court heirachy. They have a responsibility to ensure junior colleagues in their court heirachy are performing well (monitor judge performance - maintain standard of judicial integrity) and they also must receive, investigate and resolve complaints (serious complaints may be referred to the Attorney-General).

What legislation established the processes for internal complaints of judges?

Court Legilsation Amendment (Judicial Complaints) Act 2012

What are the grounds on which a Chief Justice will consider complaints of judges?

• serious to justify the removal of the judge

• affects the performance of a judges duties

• capacity to undermine public confidence in the court

What are the steps a Chief Justice can take to deal with complaints about Judges?

• recommend mentoring or education for the judge

• refer to investigation by an Independent Conduct Committee established for the purpose

• refer to Parliament (removal)

In 2019, which Judges court the attention of Chief Justice Alstergren?

Judge Salvatore Vasta (stood down from admin duties, and recommending acceptance of mentoring) and Judge Sandy Street (providing mentoring and support)

What is the limitation of the Chief Justices powers?

Can only take action that the judicial officer involved agrees to be part of (mentoring, education).

What establishes Judicial Independence in Australia?

Chapter III of the Commonwealth Constitution and s72

What does s72 of the Constitution provide for holding federal judges accountable?

Removal of federal judges on the grounds of “proved misbehaviour or incapacity.” (both houses must pass motion, G-G on advice of FEC then removes judge).

• vague - allowing Parliament to debate charges

• removing judge is ultimate sanction

• threatens independence of the judiciary

What is the framework for inbestigating allegations of Judge misconduct?

Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012

• both houses of Parliament vote to establish a Parliamentary Commission to investigate allegations (3 members, at least one former judicial offier)

What powers does a Commission for judge allegations have?

• ability to summon witnesses

• order the production of documents

• issue search warrents

Has a judge ever been removed under s72 of the Constitution?

No, but in 1986 Justice Lionel Murphy was close.

• 1989 (Qld) Justice Angelo Vasta removed from Supreme Court

Briefly outline Justice Lionel Murphy’s close call to removal

• accused of attempting to pervert the course of justice to assist a friend

• Parliament established a Parliamentary Committee - comprised of 3 retired judges

  • investigated allegations

  • raised issues (attempted bribery, misuse of police contacts)

• Murphy became terminally ill, censure never occured

Outline Justice Angelo Vasta’s removal

• Fitzgerald Inquiry findings were sufficient proof of misbehaviour

• removed in 2989

• first Australian judge to be removed from the judiciary by a parliament

How does self-removal undermine s72?

Most judges whose conduct might warrant removal resign well before the s72 mechanism if invoked.

Briefly outline Joseph Harman self-removal

• Federal Circuit Judge Joseph Harman investigated for inappropriate sexualised conduct towards a court employee and a former law student

• Chief Justice William Alstergren publicly condemned conduct, a judicial committee recommended referral to Attorney-General - move towards s72

• Harman resigned before any referral or formal action could be taken by Parliament

Which body of government is the supreme law-making branch?

Parliament (Parliament is soverign - directly elected by the people).

How does Parliament check the lawmaking power of the courts?

Passing or amending statutes.

What are the 3 ways Parliament can change use statutory powers to check the courts?

1. amend legislation to adjust the processes through which judicial power is exercised (e.g. rules of evidence, court procedures, sentencing frameworks)

2. alter the court heirachy (create new courts, adjust jurisdiction of existing courts)

3. codify or override (abrogate) precedents (clarify/remove common law)

What is an example of Parliament adjusting the processes through which judicial power is exercised in WA?

Mandatory sentencing:

• 3rd burglary offence results in min. 12 month imprisonment

How has the Commonwealth Parliament altered the court heirachy to check the courts?

• Parliament passed the Federal Circuit and Family Court of Australia Act 2021

• merged the Family Court of Australia and the Federal Cicruit Court

• aimed to improve efficiency, reduce delays, address growing backlog of family law matters

• set minimum 25 Division 1 Judges - ensures Judges workloads remain reasonable

How has the Commonwealth Parliament codified common law (Mabo No.2)?

Native Title Act 1993 codified Native Title precedent found in Mabo No.2.

What is a potential measure Parliament could take to check the courts further? (many states have already done this)

Create a federal judicial commisision

What did Parliament do in response to Mabo No.2?

Passed Native Title Act 1993 (codified Native Title)

• established native title where Indigenous people were on land that had not been sold by the Crown + had maintained a continuing connection to the land before 1788

What did Parliament do in response to Wik (1996)

Passed Native Title Amendment Act 1998 (abrogated Wik decision)

• significantly restricted the instances in which native title could be claimed

Briefly outline Wik (1996)

• HCA decision

• extended native title to cover land that was subject to mining and pastoral leases

Does the court system have the publics confidence?

Yes - but many surveys struggle to explain the reasons behind this trust, or lack thereof.

How do the courts support their public confidence?

Transparent processes:

• open hearings (trials conducted in public - except secret trials)

• publication of decisions and reasons (ratio decidendi)

• clear standards for judicial conduct (overseen by Chief Justice)

• due process and natural justice: if procedural fairness is not upheld (unfair trial => appeal)

How does transparency support accountability in the courts?

Ensures judicial processes can be observed and assessed by the public and media (scrutinised).

Briefly outline “Witness K” (2021)

• ACT Attorney-General + barrister charged with 5 secrecy offences

• Commonwealth sought trial in secrecy

• ACT Supreme Court ruled in favour of extensive secrecy

• ACT Cour of Appeal overturned, ruling most of the trial should be open

  • warned secret trial could appear politically motivated prosecution + undermine legitimacy of the justice system

• 2022 Albanese Gov’t dropped charges

Briefly outline Simon Steward

• Justice Simon Steward appointed to HCA

• Constitutional conservative, favouring a strict, text-based approach to interpreting the Constitution

• LibertyWorks Inc v Commonwealth (2023), Steward questioned whether the implied freedom of political communication principle established in Australian Capital Television v Commonwealth [1992] should exist at all

Outline Charisteas v Charisteas [2021]

• Judge in divorce case had been in contact with wife’s barrister

• HCA said this created a reasonable apprehension of bias - judge could be unfair or not fully impartial (judges should aboid private contact)

• HCA ruled 2018 property orders cancelled, case sent back to Family Court for different judge