A National Curriculum for Australian Judicial Officers
Unit Two The Law
Rationale
At the very centre of a judicial officer’s work is the need to know and apply the law, both substantive and procedural. This can include the interpretation of statutes, the application of the common law, equity, international law and the law of evidence and procedure. Judicial officers need to have a sound understanding of the law, generally, but will also need to develop jurisdictional expertise. This will provide a judicial officer with an appropriate knowledge of the substantive and procedural law relevant to the matters that they will hear.Aim of this Unit
Professional development activities should help judicial officers maintain their knowledge and understanding of the law and their capacity to apply the relevant law in their work, including being able to deal with evidentiary issues which arise in the court room. Professional development activities can help judicial officers to keep up to date with changes and developments in the law and to refresh and deepen their knowledge and understanding of existing laws. Of course, only part of the judiciary will be interested in any particular topic, depending on their area of work. In addition, these programs need not necessarily be confined to a particular court or tribunal and could be offered to judicial officers drawn from a number of courts or tribunals who have a common interest in the particular area of the law.
Application of the Core Dimensions
Substantive and Procedural Law
The primary focus of programs in this unit is to maintain knowledge and develop mastery of the law, both substantive and procedural. Programs that facilitate the development of jurisdictional expertise will be important.
Judge Craft Skills
Programs in this unit may consider what court room management and administration skills are critical to, or enhance, jurisdictional expertise. This may be particularly relevant for procedural law.
Social Context
Changes in the law may reflect aspects of society or the social contexts of those before the courts as parties, victims, accused or witnesses. They may also reflect developments in knowledge or in public policy, and consideration of these developments could usefully be included in programs, where appropriate.
Attitudes and Values
Programs in this unit may wish to include a consideration of how personal attitudes and values shape a judicial officer’s response to and perspective on changes in the law.
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
Programs
2.1 - Australia’s Indigenous People
Aim
These programs maintain and update judicial officers’ knowledge and understanding of those areas of the law relevant to their work.
Scope
These programs may encompass:
- recent changes in the law, either legislative or case law
- newly introduced laws
- recent developments in judicial practice
- aspects of the law and the work of the courts which are the subject of debate or discussion.
In some cases, a particular course will be relevant for all judicial officers; in other cases, it will be relevant for particular jurisdictions or those working in particular areas of law.
Footnotes
- Without Fear or Favour: Judicial Impartiality and the Law on Bias: Australia needs to address “a lack of co-ordination and an absence of resources to plan and develop systematic judicial education programming”, as was the central challenge facing Canada approximately 15 years ago. (p63).
- The 2007 report ‘A Curriculum for Professional Development for Australian Judicial Officers’, prepared by Chris Roper, AM
- For a complete list of references, please see Annexure A.
- National Standard for Professional Development for Australian Judicial Officers 2006, adopted by the NJCA and endorsed by the Council of Chief Justices, the Council of Chief Judges and the Council of Chief Magistrates, as well as the Judicial Commission of New South Wales, the Judicial College of Victoria, the Australasian Institute of Judicial Administration, the Judicial Conference of Australia and the Association of Australian Magistrates. A review of impact of the Standard was undertaken in 2010 by Christopher Roper.
- For an additional discussion of this issue, see speech by former Chief Justice Robert French, Judicial Education - A Global Phenomenon, The International Organisation for Judicial Training, The Fourth International Conference on the Training of the Judiciary, Sydney, 26 October 2009
- Attaining Judicial Excellence: A Guide for the NJCA, 2019
- The Honourable Justice J Allsop AO, Continuing Judicial Education: the Australian experience, Judcom, Handbook for Judicial Officers – the role of judicial education
- Justice Stephen Gageler, Keynote Address, NJCA 20th Anniversary, 8 December 2022
- Australian Law Reform Commission, Without Fear or Favour: Judicial Impartiality and The Law on Bias, ALRC Report No 138 (December 2021) at [12.78]
- See Forge v ASIC (2006) 228 CLR 45, 80 (Gummow, Hayne and Crennan JJ) (‘judicial independence refers not only to independence from the Executive, it refers to independence from other sources of influence’); Rebecca Ananian-Welsh and Jonathan Crowe (eds), Judicial Independence in Australia (Federation Press 2016); Rebecca Ananian-Welsh and George Williams, ‘Judicial Independence from the Executive: A First Principles Review of the Australian Cases’ (2014) 40(3) Monash Law Review 593.
- Alan Rose, ‘The Model Judiciary – Fitting in with Modern Government’ (1999) 4 The Judicial Review 323, 326. See also Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, [80] (Gaudron J) (‘Impartiality and the appearance of impartiality are so fundamental to the judicial process that they are defining features of judicial power’)
- TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia (2013) 251 CLR 533 [27] (French CJ and Gageler J) (the judicial process involves ‘…observance of the rules of procedural fairness.’)
- The Hon Stephen Gageler AC, ‘Judicial Legitimacy’ (2023) 97 Australian Law Journal 28, 28, and Appleby and Roberts, “Studying judges: The role of the Chief Justice, and other institutional actors”, and “The Chief Justice Under Relational and Institutional Pressure, ” Cambridge University Press 4 May 2021
- See Australian Law Reform Commission, Report 89: Managing Justice (2000) 190 (noting that judicial education can create ‘economies of scale and other matters relating to efficiency.’)
- See Russell v Russell (1976) 134 CLR 495, 520 (Gibbs J) (‘the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character. It distinguishes their activities from those of administrative officials, for “publicity is the authentic hallmark of judicial as distinct from administrative procedure.” To require a court invariably to sit in closed court is to alter the nature of the court’); Commissioner of the Australian Federal Police v Zhao (316 ALR 378, [44] (French CJ, Hayne, Kiefel, Bell and Keane JJ) (‘the rationale of the open court principle is that court proceedings should be subjected to public and professional scrutiny, and courts will not act contrary to the principle save in exceptional circumstances.’)
- Sir Gerard Brennan, ‘The State of the Judicature’ (1998) 73 Australian Law Journal 33, (‘If we are to be governed by the rule of law, we must have a judicature to administer it. The characteristics of that judicature reflect the functions it is charged to perform…[It] must be a competent judicature; there must be judges and practitioners who know the law and its purpose, who are alive to the connection between abstract legal principle and its practical effect, who accept and observe the limitations on judicial power and who, within those limitations, develop or assist in developing the law to answer the needs of society from time to time.’)
-
Three I’s: Independence, Impartiality and Integrity
- Judicial Legitimacy”, The Hon Justice Stephen Gageler of the High Court of Australia, a paper delivered at the 2022 AJOA Colloquium on 7 October 2022.