Educating Judges

“EDUCATING JUDGES – WHAT DO WE NEED?”

Speech by the Honourable Justice Peter Underwood AO, Senior Puisne Judge of the Supreme Court of Tasmania, to the Judicial College in 2004.

“Educating judges – What do we need?” It is not, I note, “Educating judges – What do they want?” Were it so, I venture to suggest that the answer I am about to proffer would be entirely rejected.

Exactly a week ago I celebrated – if that is the right word – the 20^th anniversary of my appointment to the Bench of the Supreme Court of Tasmania. When I started out the latest technology in Chambers was an electric typewriter with a golf ball and a Gestener copying machine, the handle of which was vigorously turned by an aging but strong-armed lady in order to distribute our judicial words of wisdom to an eager public. Case management was an expression not to be mentioned by the junior judge, for it was clear that he had no proper comprehension of the role of a judge and the independence of the judiciary. In those days the collective wisdom was that judges had no role to play in the pre-trial management of a case, for to do so would mean that he (and there were no female judges in those days) was stepping between a litigant and his or her solicitor and that was totally inconsistent with the duties of judicial office. As for education for judges, the very thought of it put at peril not only the independence of the judiciary but also the very rule of law itself. Indeed, any attempt to educate a judge would surely cause the sky to fall in. I remind you that in those days women and children fell into a class of witnesses whose evidence was so suspect that juries were directed that it was unsafe to convict on their evidence unless it was corroborated. In those days it was understood that the most important prerequisite for taking up judicial appointment was previous practical experience as a barrister in the Courts.[1] Justice Jim Wood of the Supreme Court of New South Wales described it this way[2]:

“The conventional wisdom seems to have been that a competent trial judge will emerge from the chrysalis of an experienced advocate, within the few minutes required for the taking of the oath of office.”

So much has changed in the last 20 years. Society has become primarily knowledge-based and its views and attitudes towards so many things have altered dramatically in that time. By way of example only, I refer to the shift in thinking over the last 20 years, about the indigenous population and land rights, about homosexuality and “gay rights”. I refer to the change in the role of women in society and the work-place, and the approach today in dealing with complaints of sexual and physical abuse of women and children. In the conduct of curial business, the biggest changes in the last two decades have been the introduction of case management and alternative dispute resolution. After some initial resistance by both the Bench and the Bar, both are now widely accepted as a part of the litigious process designed to reduce delay and cost. Over the last two decades the silicone chip has come to dominate every facet of our lives. I venture to suggest that there is virtually no aspect of modern living that is not dependent on a computer. I don’t know what has happened to our Gestetner machine or the lady who used to turn its handle, but the electric typewriter has been long buried at the tip and our judgments are now published and distributed electronically.

So what about education for the judges over the last 20 years? Has all that changed too? Some say it has all changed in that time and that education for judges is no longer seen as a threat to judicial independence. A decade ago the presenter in the next session[3] argued, “judicial education, while new to the common law tradition, is becoming integral to the standing of the judiciary and offers an appropriate means of providing accountability without violating independence.”[4] He wrote that this change was heralded by widespread complaints of gender bias and cultural insensitivity and that has led to the introduction of judicial education on gender and cultural awareness. The Chief Justice of Australia shares this view. Five years ago he said:[5]

“Judicial education is no longer seen as requiring justification. We are past the stage of arguing about whether there should be formal arrangements for orientation and instruction of newly appointed judges and magistrates, and for their continuing education. There are approximately 880 judicial officers in Australia. The idea that all, or most, of them have had sufficient practical experience before appointment to slip comfortably into their judicial roles, without the need of further assistance, and that thereafter throughout their judicial careers they would keep abreast of developments in the law and in judicial technique on their own initiative, is unacceptable.”

So, are judges going about the business of education? Is all well? Is the answer “Nothing, thank you” to the question, “Educating Judges – what do they need?”- I do not think so. I accept that a large number of newly appointed judicial officers have attended the annual Judicial Orientation Programme[6] and found it very beneficial. But, apart from that, what is judicial education in Australia today? There are a number of conferences, seminars and workshops conducted around the country and attended by judicial officers. Mostly, these conferences consist of a judicial officer, or an academic, delivering a paper to an audience, followed by one or two short commentaries on the paper, and, if there is time, there will be a few questions from the audience. More often than not these “questions” are not questions at all, but long, boring statements made by people who have a view on everything, and who always want to express it in the misguided belief that it will enlighten those fortunate enough to hear it. I warrant that if a short examination was conducted at the end of each day of these conferences the retention of information by the attendees would be abysmally low.

So, there are learning programmes for judicial officers, but are they effective? For example, there are the programmes conducted by the Centre for Judicial Studies[7] but under the heading “Clients” the Centre lists only two Australian Courts, the Family Court and the Local Courts of New South Wales.[8] In addition, there are the programmes conducted by such organisations as the Australian Institute of Judicial Administration[9] and the Judicial Commission of New South Wales,[10] but I often wonder how much judicial learning is achieved by many of those programmes. As a single illustration, how many judicial officers do you know who have embraced computer technology and have actively demonstrated a willingness to learn even the most rudimentary skills such as typing and the Boolean search operators? How many judges do you know who tell you with a self-satisfied smirk, that he (and it is usually he) is computer illiterate and that he cannot programme the video recorder to time record. Even today, many judicial officers are wary of judicial education, or still see it as a potential threat to judicial independence.[11]

So what do we need to educate the judges? I venture to suggest that no real progress will be made in the field of judicial education until there is a massive cultural change right across the judiciary, a change that will see widespread, genuine acceptance by judicial officers of a need to embrace learning well beyond an initial judicial orientation programme. A complete sea-change is what is needed.

There are two aspects to judicial learning. One is directed to an improvement of the skills required to discharge the duties of the judicial office. The other is directed, or should be directed, towards improvement of judicial awareness of changes in society and the expectations that society has of the judiciary. Doyle CJ makes this clear:[12]

“In short, Australia’s judiciary needs, in the national interest, to have available to it a good range of programs of professional development. These programs should place particular emphasis on learning from the experience of others. This is not just for newly appointed judicial officers. It apples to all judicial officers. The programs should assist us to improve our skills in court. They should help us to adjust to changes in society and in society’s expectations of a judiciary. They should 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 programs should include disability awareness training, so that we can ensure that all Australians are treated equally. Like other professionals we can benefit from assistance in maintaining our health and dealing with stress, to ensure that we remain fully fit for our demanding office. And, importantly, Australia’s judiciary need programs that will,, when appropriate, refresh and rejuvenate its members, to avoid burnout.”

This is a refreshing statement of principle from the new National Judicial College, for Doyle CJ expressly refers to the two aspects of judicial learning. This need to learn about changes in society and society’s expectations of judges, as well as about how to be a better judge, was recognised a decade ago in the United Kingdom by the Judicial Studies Board. Kate Malleson cites[13] the Board’s Chair as saying:

“Twenty years ago, a majority of judges would have denied there was any need for judicial training. Today, only a minority would share that view.”[14]

And writes that:

“… the Board intends to increase the frequency of its refresher courses and to develop the fields of race and gender awareness. More generally, it is seeking to adapt existing training to ensure the fair treatment of unrepresented parties, witnesses, jurors, victims and their families, children and those with disabilities.”

So what is involved in this badly needed cultural shift in the judiciary? A good start would be to stop talking about “educating judges” and start talking about “learning for judges.” The efforts of the National Judicial College will come to naught unless the members of the judiciary are willing to accept that to be an effective judicial officer one has to be a willing life-long learner, not just about the “job”, but also about the society to whom he or she is accountable. Indeed, I would venture to suggest that a person who is not willing to embrace this concept is disqualified from holding judicial office, no matter how learned in the law he or she might be. As is all too common, the conservatism of the law has resulted in learning by the judiciary lagging behind learning in the rest of society. Dr Peter Ellyard wrote:[15]

“Many policies and programs in the 1990s were dedicated to the promotion of life long learning and to the creation of learning organisations. We knew that in the rapidly changing world of the late 90’s and early 21st century, each person would be required to learn continuously in order to adapt to changing circumstances and to develop new skills and capabilities to thrive in a rapidly changing world. We also knew that any enterprise which sought to be successful in the knowledge based industrial system of the 21st Century would need to be led and managed in ways which maximised organisational learning.”

The next thing that is needed for effective learning by judges is a widespread acceptance in the judiciary that life-long learning for judicial officers will be most effective if it is self-directed and collaborative. It is just not possible to force anyone, let alone an independent judicial officer, to learn. Some of the best learning comes from collaboration. This applies equally to the office, the factory, the school and the Court.

“When employees sit chained to their desk, quietly and industriously going about their business, an office is not functioning as it should. That’s because innovation … is fundamentally social. Ideas arise as much out of casual conversations as they do out of formal meetings. More precisely, as one study after another has demonstrated, the best ideas in any workplace arise out of casual contacts among different groups within the same company.”[16]

There is an even greater need for collaborative learning by the judiciary because the job of judging is, by its very nature, a lonely, individualistic task, and tends to isolate one judge from another. Self-directed collaborative learning will not come about unless the court creates the right atmosphere and opportunities for it to occur. Such opportunities include informal but regular lunches to which perhaps, a guest, such as a psychiatrist or an aboriginal elder may be invited to run a short discussion group on some aspect of their life or work which will enrich the judicial mind about an aspect of judicial life or the society in which we all live. I recently read an article in which the American people were described as incurious about other cultures. I think that, as a group, judges are incurious and this is an inhibitor to learning. Attendance at seminars and lectures is a process of instruction. Apart from the occasional exception, this is about as far as judicial education of judges has progressed in this country. What is needed is a process of “construction.” Learning by construction instead of instruction will only thrive in a collaborative learning environment in which knowledge is shared and built on in a constructive way. Such an environment will stimulate the judicial officers to think “outside the square” and encourage the application of learning in one area to another area.

This kind of learning environment will not come about unless a judge is not only given the job of being the Court’s professional development officer, but also whose appointment as such is supported by the other judicial officers. A perception must be nurtured that continual professional development is part of the job. The professional development officer is a familiar face in other workplaces, why should it be any different in the judiciary? The only rider I make is that sanction for not attending judicial development is inappropriate in the judicial setting, but in any event, peer group pressure is often more effective than sullen compulsive attendance.

The kind of learning that I propound needs the support of the Executive. That branch of government needs to recognise the importance to judicial office of life long learning in a collaborative style and provide funds and time for professional development. Most judicial officers are busy being judge, and, like physical exercise, learning of the kind that I say is necessary, will always be put off until a later day unless the culture in both arms of government is that appropriate time for learning is just as important as time for hearing cases and writing judgments.

So, in the brief time available to me I respectfully suggest for your consideration, that judges do not need educating at all, but they do badly need to willingly embrace the need for life-long learning in a collaborative style, but this will require a huge cultural change.

I know that expounding this sort of idea is to run the risk of me being lynched in the dark corridors of some court, for as a famous Law Lord once said[17], “Change? Haven’t we got enough trouble already?”

Peter Underwood AO[18]

2004