A judicial body to handle issues such as judicial independence and accountability is needed, according to Supreme Court judge Ms Justice Denham, who is a member of the committee considering mechanisms to deal with judicial ethics and conduct.
Stressing she was speaking in a personal capacity, Ms Justice Denham told the annual conference of the Australian Institute of Judicial Administration in Darwin earlier today that such a body should be established on a statutory basis. Legislation could give it the right to call witnesses.
While the issue would have to be carefully considered, she said she personally favoured including lay people in the process. The body could oversee judicial studies, complaints procedures, terms and conditions of judicial appointments and research.
Ms Justice Denham described judicial independence as "the diamond in a democracy". The assurance that the judiciary was independent from outside pressure, including from government, was a right of the people and the duty of the judiciary.
However, she argued that modern systems of accountability were not incompatible with judicial independence, although tensions between them inevitably arose. There was no perfect solution, she said. "It is a matter of achieving a balance between conflicting principles."
The issue of accountability and judicial independence was being considered in most common law jurisdictions, she said. Constitutionally they shared basic principles such as the separation of powers and judicial independence and the question of what to do when the issue of judges' conduct arose was now being raised in most of these countries.
This grew out of changes in both the law and society. Because of the growth in human rights laws, international agreements and covenants, technological changes that threw up ethical and legal issues previously undreamt of, judges faced far greater challenges than in previous eras. Higher levels of education and an extensive and more immediate media meant their actions were open to even greater scrutiny than before. The issue of accountability was raised in an urgent way.
Judges were already accountable, she stressed. This was assured through their oaths, the administration of justice in public and the right of appeal. But the question of dealing with complaints about judicial conduct also had to be addressed.
Most of the countries with a common law system had provision for parliament to consider the impeachment of a judge when an issue of serious judicial misconduct arose. However, there was little provision for dealing with lesser complaints. This was now the subject of debate in countries such as South Africa, the UK, Australia, New Zealand and, of course, Ireland.
Impeachment is the power, the check and balance, of parliament. Lesser misconduct is an issue best addressed within the judiciary, she said.
Accountability may be achieved through a judicial body - the Judicial Council of Canada and the Judicial Commission of New South Wales had processes which included a filtering process leading eventually to an inquiry.
She said setting up such a body was important for two reasons: society is changing and so too should the judiciary, and, without a body to investigate allegations of lesser misconduct than that meriting impeachment, a dangerous vacuum would exist. "In such a vacuum an issue may be tried elsewhere and in a divisive fashion."