Educating Judges-What Do We Need?
Underwood, Peter, The High Court Quarterly Review
"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 20th 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 (3). 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. …