Australian Judiciary Research Articles

The privilege and the pressure: judges’ and magistrates’ reflections on the sources and impacts of stress in judicial work

There is growing evidence that judges and magistrates experience both high stress and high satisfaction in their work; however, the subjective experience of judicial stress and the cultural and professional factors shaping that experience remain largely unexamined. This qualitative study builds upon earlier quantitative research with the Australian judiciary, by exploring judges’ and magistrates’ perceptions of the sources and impacts of judicial stress and their ideas for court responses. Thematic analysis of 59 in-depth interviews with judicial officers from five Australian courts revealed eight themes pertaining to the better understanding and management of occupational stress within the judiciary. Implications for courts and individual judicial officers are discussed.

Comparative Exceptionalism? Strategy and Ideology in the High Court of Australia

Abstract This Article provides a rare comprehensive empirical assessment of oral argument outside of the United States. Drawing on a novel dataset over twenty-six years (1995–2019), comprising nearly one million speech episodes at oral argument in Australia’s apex court, the High Court of Australia, we are able to compare patterns of judicial behavior found in the U.S. Supreme Court to a comparable Western liberal democracy with a long tradition of judicial independence. There are a number of highly significant institutional differences between the Australian context and the U.S. Supreme Court, including a Chief Justice with additional power at oral argument, unlimited time for the length of argument, and variable panel sizes. Nevertheless, the Article finds evidence of similar patterns between Australian High Court and U.S. Supreme Court Justices. Importantly, this includes engaging in judicial advocacy on behalf of the side of the case that they ultimately support, contradicting the jurisprudential orthodoxy that the Australian judiciary is apolitical. In addition, numerous other factors that have been shown to be highly influential in the American context are also shown to be powerful in the Australian context, most notably judicial ideology, gender, and experience. This suggests that while striking institutional differences can impact oral argument and make arguments look very different, we can nonetheless discern similar underlying patterns of judicial behavior that can be recognized as strategic advocacy. All this suggests that neither system is “exceptional”—judicial advocacy may simply be part and parcel of having a strong independent judiciary.

The Engineers Case Centenary: SCOTUS and the Origins of Australia's Scabrous Constitutional Signature

Abstract Since the Engineers Case decision in 1920, the role of the United States Constitution in interpreting the Australian Constitution has been diminished, leading to inefficiencies in High Court of Australia (HCA) dealing with constitutional issues. To explain this thesis, the article looks at the 7,657 cases decided by the HCA, from the first case in 1903, to the 31st of August 2020, the centenary of the Engineers Case. The analysis identifies outliers that have much higher complexity (in terms of word-length) than the other judgments. This complexity has one common denominator: comparative analysis with the United States Constitution. The article explains why this common denominator has resulted in such complexity, and concludes with possible research extensions on the roles of the Australian judiciary in embracing SCOTUS jurisprudence when interpreting the Australian Constitution.

Job satisfaction in the judiciary

This article examines job satisfaction among judicial officers in Australia. Increasing numbers of women have entered the judiciary and their job satisfaction is a key route to understanding their experiences of this elite role. This paper applies concepts of job satisfaction to the judiciary and investigates gender differences. Data from two national surveys demonstrate that women and men across the Australian judiciary express very high levels of overall job satisfaction, though areas of dissatisfaction exist, in particular regarding work–life balance. Gender differences do not appear to be direct, but mediated by other characteristics which are gender-related. Broadly, these findings demonstrate that a full understanding of job satisfaction now requires attention to family/domestic demands and commitments and the workplace context, as well as to the intrinsic nature of the work and the extrinsic characteristics of the job.

Entering the Australian Judiciary: Gender and Court Hierarchy

There is considerable attention to increasing judicial diversity along a range of dimensions, in particular, gender. Women remain underrepresented in many courts, especially at the higher levels of the judiciary. A comprehensive socio‐legal study of the Australian judiciary compares experiences and attitudes of women who have become judicial officers at different levels of the court hierarchy. Understanding their personal and professional backgrounds and the features that attracted them to the judiciary has important implications for addressing gender disparity. Effective recruitment and selection must focus on the expectations and experiences of women in relation to particular judicial contexts.

In-Court Judicial Behaviours, Gender and Legitimacy

Two important recent developments are the increasing gender diversity of the judiciary and a turn towards newer forms of judging that rely on more direct judicial interaction with court users. Empirical research into the views and attitudes of men and women in the Australian judiciary reveals a strong shared commitment to core judicial values such as impartiality as the most essential qualities for judicial work. Slightly larger proportions of women express positive attitudes towards skills and practices such as communication and listening, while also expressing strong commitment to the importance of legal skills. Analysis of in-court behaviours of men and women in Australian courts, including the time taken to hear matters, the demeanours displayed towards those appearing in court and the frequency of judicial officers looking at and speaking directly to defendants, finds strong similarities and some differences between men and women. These findings provide important insights into the meanings of gender diversity in the judiciary, the increasingly contested nature of the judicial role and the legitimacy of different approaches to judging.

What reasons could (in theory) cause the CGT regime to produce micro-level outcomes that fail to satisfy horizontal equity?

This paper addresses the question of what reasons could (in theory) cause the Australian regime of income tax on capital gains ('the CGT regime') to produce micro-level outcomes that fail to satisfy the macro-level policy objective of horizontal equity. In answering that question, this paper argues that any of the four reasons (and only one of those four reasons and no other) can (in theory) cause the CGT regime to potentially produce micro-level outcomes that violate horizontal equity. Those four reasons are described in this paper. That description is followed by the articulation of an argument that the most practicable means to address those four reasons is through a 'consequentialist' approach to interpreting the legislative provisions imposing CGT, buttressed by legislative directives to the Australian judiciary and other measures necessary for making such a consequentialist approach practicable.

Judicial Bodies as Sexual Bodies: A Tale of Two Portraits

An examination on sexual diversity in the Australian judiciary is presented. The issue is examined in the context of visual images of the judiciary, particularly the visual language used in creating judicial images. The focus is on two portraits of Justice Michael Kirby, one of the longest serving judges of the High Court of Australia, by artists Ralph Heimans and Josonia Palaitis.

The Australian Judiciary: A National Sociolegal Analysis

The Australian Judiciary: A National Sociolegal Analysis

Appointing Australian Judges: A New Model

The paper argues for reform in the process by which members of the Australian judiciary are selected. In advocating reform we do not suggest that the appointment process to date has failed. Measured in historical and international terms the Australian judiciary is acknowledged to be of outstanding quality which has enjoyed the public's confidence. Rather, we advocate reform in order to ensure two things. First, that the judiciary retains the independence that is essential for it to discharge its constitutional functions. And, second, that it reflects the society from which it is drawn and continues to enjoy the confidence of that society. We recommend that Australia adopt a process for judicial appointments that is based on the process recently established for England and Wales under the Constitution Reform Act 2005 (UK). Appointments would continue to be made by the executive. Judicial Appointments Commissions (consisting of three judicial members, three legal members and three non legal members - including the Chair) would recommend three names to the executive from which the appointment must be made. The Commissions' recommendations would be the culmination of an evidence-based process involving applications, references, interviews and in some cases practical assessment of relevant skills.

The Merits of Rylands v Fletcher

English and Australian judges have, over the past few decades, severely questioned the juridical distinctiveness and utility of the rule in Rylands v Fletcher. The popular assertion in this country has been that the rule is really only a subspecies of the law of private nuisance. By contrast, the Australian judiciary has abandoned the rule altogether, preferring to expand the law of negligence to capture the rule's former territory. This article seeks to defend the rule in Rylands v Fletcher. In particular it asserts that, by reference to their historical origins, the rule in Rylands v Fletcher and the law of private nuisance can be seen to be quite different creatures. It also argues that there is strong case for the rule's continued vitality, and that it would be a grave mistake to abandon it in favour of a yet more expansive law of negligence.

The Australian High Court's Use of theWestern SaharaCase inMabo

Recent cases before the High Court of Australia have raised the question as to the appropriate degree to which international law should influence Australian law and politics.1Crucial to the reasoning in the leading judgment of the landmark 1992Mabocase,2by which the Australian judiciary recognised for the first time a native title to land, was the finding that Australia had not beenterra nulliusat the time of colonisation. The leading judgment accepted the categorisation of Australia as a settled colony which had been established by the Privy Council inCooperv.Stuart.3In this judgment Lord Watson had held that Australia, as a “settled” colony, had received transplanted British law “except where explicitly changed or considered irrelevant”.4This had given rise to the assumption, confirmed byMilurrpumv.Nabalco Ltd(the Gove Land Rights case of 1971) that, since no legal rights to land of indigenous people existed in British law and none had been explicitly acknowledged in relation to Australia, no basis existed for their later recognition.5The leading judgment inMabowent on to declare, however, that the notion that British law had been transplanted into a settled colony had been based on the assumption that the “indigenous people of a settled colony were … without laws, without a sovereign and primitive in their social organisation”.6Since “the facts as we know them today” do not “fit this theory” the leading judgment asserted there to be “no warrant for applying in these times rules of the English common law which were a product of that theory”.7