Should Magistrates and Judges Be Required to Obtain an Extra Qualification?

NT attorney general Natasha Fyles spoke out about controversial Central Australian Judge Greg Borchers on Thursday, stating she was “most concerned” about his conduct, and that she’d accepted the advice of bureaucrats when deciding not to hold an inquiry into his capacity to hold his position.

Darwin Local Court Chief Judge Dr John Lowndes released his findings in December into an investigation of six complaints made against Judge Borchers.

One of the complaints concerned the judge telling a 13-year-old boy in June last year that he had taken advantage of his mother’s recent death to commit property crimes. The boy’s father had allegedly murdered his mother in January.

“You don’t know what a first world economy is,” the judge told the boy in court. “You don’t know where money comes from, other than the government gives it out.”

Another complaint involved a young female lawyer from the Central Australian Aboriginal Legal Aid Service who quit in 2016, primarily as a result of courtroom bullying by the judge.

The bullying was said to be the “usual rite of passage” that the judge laid out for young criminal lawyers.

The was a further complaint the judge had subjected a 14-year-old sexual assault victim to an “insensitive and unnecessary” courtroom “mini-appraisal” of her parenting skills.

Judge Lowndes found Borchers had engaged in “inappropriate judicial conduct,” but that his actions did not warrant removal from the bench. It was determined the judge could no longer preside over matters in Alice Springs Youth Justice Court, but would continue to sit on youth courts elsewhere.

Improving the quality of justice

While Judge Borchers’ conduct may be inappropriate, it’s hardly the first time questions have been raised regarding the competence of members of the Australian judiciary.

Indeed, it’s due to such incongruous conduct that some are suggesting judicial officers need extra training.

Civil Liberties Australia (CLA) chief executive Bill Rowlings said he’s he’s puzzled as to why “law, amongst all the professions, doesn’t appreciate the benefits of further study, learning and training for those who are the chosen, preeminent and most senior practitioners in the field.”

Mr Rowlings told Sydney Criminal Lawyers® that every other profession requires “extra study before you are honoured as a senior professional.” He pointed out that surgeons and gastroenterologists require specialist training, whilst academics require a PhD before being appointed a professor.

Indeed, CLA took the issue up with newly-appointed Australian attorney general Christian Porter in one of its annual suggestion letters drafted last week. The correspondence recommended “mandatory extra qualification training” for all judges and magistrates.

According to Rowlings, it’s up to judges and attorney generals to determine nature and specific requirements of the further qualification. However, he envisages magistrates being required to undertake the equivalent of a Graduate Diploma, while Supreme Court judges might require a Master’s degree. It would be desirable for the course to include training on appropriate conduct within the courtroom, and the potential effects of bullying practitioners and demeaning witnesses, complainants and defendants.

Making the grade

Currently, becoming a magistrate or a judge in NSW requires no extra qualifications, other than being a member of the legal profession.

A lawyer must have practiced for at least five years in Australia to be eligible to become a member of the judiciary, and the Governor in Council appoints magistrates and judges on the recommendation of the attorney general.

In order to be appointed to a position as a magistrate in a Local or judge in a District Court, a lawyer can either apply for an advertised position or be nominated by another person. In the case of the Supreme or High Courts, appointments are offered to highly experienced barristers and solicitors.

Mr Rowlings stresses that the role of a judge is radically different to that of a lawyer. Whereas a lawyer “works adversarial and advocates a particular viewpoint,’ a “judge must remain impartial in managing a competitive debate, while enforcing specialist legal rules.”

He adds that the “enhanced skill set’ that’s required of magistrates and judges, includes a “greater knowledge of court management laws, of psychology and of people skills”. This is not necessarily acquired in the role of “a partisan advocate” that a lawyer is well-versed in.

A judicial dynasty

Rowling suggests that an example of where the system is failing is former attorney general George Brandis’ appointment of Alexander “Sandy” Street to the Federal Circuit Court bench.

As “the son, grandson and great-grandson” of NSW Chief Justices, Mr Street could have been expected to absorb “legal knowledge and judicial understanding,” without the need for extra education, the civil libertarian said.

But as Mr Rowlings points out, Judge Street’s “first two years have featured criticisms from full benches reviewing his judgments, including for denying procedural fairness,” as well as being “accused of apprehended bias.”

“While one person does not confirm an overall problem,” Mr Rowlings explained, “the Street case appears to illustrate quite clearly that the required knowledge of the law is very different when a barrister is made a judicial officer.”

The old boys’ club

However, this is not the only instance of a failing within the judiciary. In August 2016, two Victorian County Court judges were accused of being out of touch with modern values, following comments they made when sentencing adult men in two separate sexual assault cases involving young girls.

Victoria’s oldest serving County Court judge described a 13-year-old girl as giving “ostensible consent” to a man 40 years her senior. And Judge Michael McInerney then remarked that the girl, who was 17 years old at the time, had grown into a “somewhat striking young woman.”

While Judge Christopher Ryan described a 14-year-old sexual assault victim as “nubile.” He then went onto remark that former Children’s Court security guard Franco Abad, who was 30 when the offence occurred, was “not made of steel” when the “worldly” girl climbed into his bed.

Keeping up-to-date

Claims that some members of the Australian judiciary are out of touch with the value systems of the wider community have been common over recent years, especially when it comes to older men on the bench harbouring sexist attitudes from some darker age.

As Mr Rowlings suggests the extra qualifications that potential judges could be required to undertake might include specialist studies, such as units in restorative justice, Aboriginal justice, psychology, partner crime and domestic violence studies.

And just as lawyers are required to undertake continuing professional development every year, Rowlings suggests, so too should magistrates and judges.

“CLA finds it odd that judges are not required to do any additional study or learning after appointment, whereas everyone else in the profession is,” he concluded.