National Judicial College of Australia 2024

A National Curriculum for Australian Judicial Officers

Foreword

“The beginning of judicial wisdom is having the humility to recognise that there will always be things which bear on the proper performance of the judicial function which one simply does not know. There will be skills one simply does not have or has not yet mastered. To recognise those human weaknesses is also the beginning of judicial education. Judicial education tethers us to human experience beyond our personal professional experience.”

We should never forget that we as judges are engaged with one of the greatest concerns of humankind – the cause of justice on earth. If we can improve the quality and intensity of our engagement individually and collectively, we should.”

 Justice Stephen Gageler, Keynote Address, NJCA 20th Anniversary, 8 December 2022

“Australia’s judiciary needs, in the national interest, to have available to it a good range of programs of professional development” in order to “improve our skills in court…  help us to adjust to changes in the law and in legal practice… help us to adjust to changes in society and in society’s expectations of a judiciary…  address matters that were neglected in the past, although no longer, such as how gender and cultural differences can affect the manner in which justice is administered.”

The Hon John Doyle, Sir Richard Blackburn Lecture (2004)

Background

“The beginning of judicial wisdom is having the humility to recognise that there will always be things which bear on the proper performance of the judicial function which one simply does not know. There will be skills one simply does not have or has not yet mastered. To recognise those human weaknesses is also the beginning of judicial education. Judicial education tethers us to human experience beyond our personal professional experience.”

We should never forget that we as judges are engaged with one of the greatest concerns of humankind – the cause of justice on earth. If we can improve the quality and intensity of our engagement individually and collectively, we should.”

 Justice Stephen Gageler, Keynote Address, NJCA 20th Anniversary, 8 December 2022

“Australia’s judiciary needs, in the national interest, to have available to it a good range of programs of professional development” in order to “improve our skills in court…  help us to adjust to changes in the law and in legal practice… help us to adjust to changes in society and in society’s expectations of a judiciary…  address matters that were neglected in the past, although no longer, such as how gender and cultural differences can affect the manner in which justice is administered.”

The Hon John Doyle, Sir Richard Blackburn Lecture (2004)

Purpose & Aim

Purpose

The Curriculum is designed to provide guidance for initial and continuing judicial education in Australia to enable judicial officers to meet the professional development expectations set out in the National Standard for Professional Development for Australian Judicial Officers 5.

Aim

It is intended for judicial officers of both courts and tribunals across all jurisdictions. It is designed to be adaptable and dynamic and is not intended to limit what can be offered in judicial education. However, it is intended to provide a comprehensive landscape for judicial education to assist Australian judicial education bodies to identify priority areas for program development, encourage increased coordination between bodies and jurisdictions, and to avoid duplication of effort 6. The Curriculum may also be used by judicial officers to inform and to guide their own judicial learning.

The Quest for Judicial Excellence

In November 2019, the NJCA published a document on ‘Attaining Judicial Excellence’, which describes the knowledge, skills, and qualities of judicial officers considered to be facilitative of judicial excellence in order to ‘assist in designing professional development programs for Australian judicial officers’ 7. The Curriculum is intended to provide a framework for the development of these programs. These programs should provide judicial officers with pathways “to foster judicial capacity… which focuses on induction, orientation and transition to the [position] and then on a continuous renewal of professional education and sharpening of judicial skills” 8 ; and one that also enables the development of programs that address needs at different career stages.

The NJCA is the national leader in judicial education. Since our inception over twenty years ago, judges and magistrates have led the design, development and delivery of NJCA programs. The Curriculum reflects the NCJA Council and NJCA Program Advisory Committee member’s commitment to the five sustainable goals of judicial education and training:

Pursuit of Life Long Learning

To harness life-long judicial learning, delivered through continuation training and individual judicial learner pathways

Practical & Transformative Management Skills

Judicial education and training that supports renewed ways of working and digital skills, preparing judicial office holders for new technology, scientific advancement, innovation and changes in the way justice is administered across all jurisdictions.

Ongoing Social Context Awareness

A deeper understanding and appreciation of the social context within which decision making and judicial reasoning occurs, as well as encouraging inclusivity, diversity, engagement and respect across the judiciary as it changes

Cross-Jurisdictional Knowledge & Skills

The acquisition and improvement of cross-jurisdictional judicial skills which support and enhance the wider development of the Australian judiciary

Self-Analysis & Introspection of Attitudes & Values

An understanding and appreciation of both individual and collective judicial officer attitudes and values and how these intra-personal qualities impact upon decision making

Philosophy & Structure

“The beginning of judicial wisdom is having the humility to recognise that there will always be things which bear on the proper performance of the judicial function which one simply does not know. There will be skills one simply does not have or has not yet mastered. To recognise those human weaknesses is also the beginning of judicial education. Judicial education tethers us to human experience beyond our personal professional experience.”

“If we are to be true to our ideals of objectivity, fairness, and impartiality, we need to confront our own prejudices and preconceptions and be prepared to appreciate the diversity of society we serve.”

Justice Stephen Gageler – Keynote Address, NJCA 20 th Anniversary, 8 December 2022

Four Core Dimensions of Judicial Learning

In the past, judicial education has, appropriately, focused on judge-craft skills and substantive law. However, over the last decade, there has been a growing acknowledgement for judicial education to place greater emphasis on both social contextual training and the exploration of the personal values and attitudes that the individual judicial officer brings to their role 9.

In Roper’s 2007 Curriculum Report, social context and judicial values and attitudes were largely addressed as standalone modules of learning. Since that report, there has been growing acceptance that competence in these two areas is also critical to the judicial role and, therefore, are also essential dimensions that need to be considered when developing a judicial education program.

Accordingly, this Curriculum is underpinned by Four Core Dimensions of Judicial Learning (judge-craft skills, substantive and procedural law, social context, and attitudes and values). This is important given this curriculum is not exhaustive or prescribed, and programs may be developed now or in the future drawing from different parts of this Curriculum or beyond this Curriculum. Therefore, it is important to articulate the Core Dimensions so that they can guide judicial education program design, development and delivery.

Substantive & Procedural Law

This core dimension aims to develop and maintain a judicial officer’s knowledge and understanding of criminal, civil and other substantive law and procedure, regulations and rules (including the rapid mastery of unfamiliar areas of the law as required), international law and international jurisprudence, and statutory interpretation relevant to the fulfilment of the judicial role.

Judge-Craft Skills

This core dimension seeks to develop the skills and competencies required by the judicial officer to administer and manage a judicial practice. This includes judge-craft skills such as the skills prescribed by the pre-trial and trial process, note-taking and active listening, exercising communication and control in the courtroom, judicial reasoning, oral decision making, judgement writing, principled and uniform sentencing, resolving disputes and alternative dispute resolution. It also includes judicial management and administrative skills such as time, case, record and registry management, along with judicial and court officer management.

Attitudes & Values

This core dimension seeks to develop the awareness and understanding of judicial officers of the lived experience of individuals who enter the court system, including an understanding of circumstances related to, without limitation, gender, race, ethnicity, culture, religion, sexual orientation, socio-economic background and circumstances, mental or physical abilities, age, abuse and violence. This core dimension seeks to ensure that the judiciary is able, through the administration of justice, to reflect the values of the diverse society in which it dispenses justice.

Social Context

This core dimension aims to develop and maintain a judicial officer’s knowledge and understanding of criminal, civil and other substantive law and procedure, regulations and rules (including the rapid mastery of unfamiliar areas of the law as required), international law and international jurisprudence, and statutory interpretation relevant to the fulfilment of the judicial role.

Core Judicial Qualities

Of judges, training within a system of judicial functions, Sir Gerard Brennan once said that “their minds are cast in the mould of the system, they develop personal qualities which are compatible with the system” and that “they both determine and are formed by the function which they discharge” 10. The purpose of judicial education is to promote competency in carrying out the judicial role and support the development and maintenance of a judicial officer’s ethical identity. Both these aspects are integral to maintaining public confidence and trust in the judiciary. As crystallised in a statement by the former Chief Justice of Australia, the Honourable Murray Gleeson AC QC, “the general acceptance of judicial decisions, by citizens and by governments, which is essential for peace, welfare and good government of the community, rests, not upon coercion, but upon public confidence.” Judicial education strengthens judicial authority and legitimacy. To that end, a judicial officer’s ethical identity reflects the following judicial values:

Independence

The courts remain independent of the other branches of government and judicial officers are not subject to improper pressure or influence when making decisions. 10

Impartiality

This requires ‘treating like cases alike; a process which is free from coercion or corruption; ensuring that inequality between the parties does not influence the outcome of the process; adherence to the values of procedural fairness…and unbiased neutral decision making…’ 11

Fairness

Being patient and respectful, allowing litigants to present their case and ensuring the absence of actual or perceived bias 12

Accountability

open court principles, annual reports identifying expenditure, rights to appeal, as well as giving reasons, noting the variation in this value for those in leadership roles. 13

Efficiency

Ensuring the reasonably timely resolution of cases. 14

Transparency

Maintaining an open rather than closed court as far as possible and providing clear and reasoned decisions that are publicly available as far as possible. 15

These judicial qualities, as concepts, are often merged but are arguably able to be distinguished 11. Importantly, all judicial values are fostered through judicial learning that incorporates all Four Core Dimensions of Judicial Learning.

Units of Judicial Learning

The units of judicial learning are the broad areas under which programs of professional learning are organised. In each of these areas are programs that support the development of judicial capacity in all dimensions of judicial learning. The units of judicial learning are based on Roper’s 2007 Curriculum Report. Amendments and additions have been made to reflect best practice in judicial learning, globally, as well as changes to the reality of the judicial role 12.

The Judicial fun c tion The L a w Judicial M anageme n t in the c ourt r oom V ulne r able people in the c ourt r oom Judicial R e a s oning and Decision M aking S e n t encing Di v e r si t y and Inclusion A u s t r ali a s Indigenous P eople Judicial Li f e and Qu e s t f or Enduring P urpo s e I n t e r s e c tion o f S cien c e , T echnology and the Judicial F un c tion Judicial S el f ca r e and long e tivi t y on the bench Judicial L e ade r ship

Footnotes

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