By Paul Gregoire and Ugur Nedim
Long gone are the days when the public was expected to blindly trust institutions. Over recent years, there has been a marked decline in trust especially in public organisations. And this has gotten to the point where these entities need to question how they can build trust in the community.
These were the sentiments of NSW Chief Justice Tom Bathurst as he addressed the Law Society of NSW Opening of Law Term Dinner in Sydney on 3 February.
“Whilst the Australian judiciary has historically enjoyed high levels of trust, we cannot afford to be complacent,” Bathurst told the dinner guests. “The legitimacy of the judiciary and, in turn, the courts relies upon a certain level of trust in the competency, motivations and values of its judges.”
The top judge explained that he’d be taking the opportunity in giving the speech to “examine the level of trust placed in the judiciary by the public”. And he went on to do this by considering the appointment of judges, and the “active and defensive measures to foster trust in the judiciary”.
Bathurst further underscored that judges wield “immense power” over the lives of citizens, but, as there is no direct “electoral connection” between judges and the citizenry – as is the case with politicians – public trust in the institution of the judiciary is “fundamental to the rule of law”.
Sociological literature identifies three qualities that work to ensuring public trust in organisations. These are competence, integrity and benevolence.
According to the Chief Justice, to “maintain judicial legitimacy” these three dimensions of trust are useful in weighing up the merit in judicial appointments.
“Merit is not simply technical expertise,” Bathurst made certain, and he added that it entails the “ability to inspire” community trust in the judiciary. And what constitutes a high-quality judge, in his opinion, varies on “role and responsibilities”.
In presiding over the appeals court, technical competence is significant, but so too is “experience and empathy with litigants”. And “so-called ‘soft skills’” are even more important in trial courts, as judges are required to engage with the community on a daily basis.
Defendants, victims and witnesses all need to walk away from their courtroom experience understanding that they were heard and respected.
And Bathurst stressed that emotional intelligence is especially important for magistrates who deal with the overall bulk of judicial matters.
Broadly speaking, the Chief Justice understands that Australians do trust the competence of judicial decisions.
Although, it’s important that the public understands what the judiciary does, as it’s detrimental to believe judges make decisions based on personal whims or that a disparity in judgements exists.
Therefore, Bathurst suggests increasing the accessibility of courts, as most people derive their understanding of the judiciary indirectly, and at times, this can be misguided.
Encouraging greater exposure and comprehension of the work judges and magistrates do would increase trust in them.
Direct engagement with the public and enhancing understanding of decisions is essential to building trust in judicial competence. And Bathurst asserts that the advent of live streaming courtroom proceedings to the public, which commenced with the pandemic, is a perfect way to do this.
“It enables the public to see not only that justice is done but how it is done,” he continued. “When it is as simple as clicking on a YouTube link, anyone, irrespective of their familiarity with the Courts, their geographical location, their confidence in entering court buildings, can see justice in action.”
Cleaning up the profession
The Chief Justice then considered the integrity of the NSW judiciary, which he emphasises depends upon every judge and magistrate adhering to a set of principles.
Indeed, trust in the integrity of the judiciary is more likely to be present when the institution and the public share the same values.
Citizens entrust great power in judges, and this can become problematic if judicial officers are shown not to keep societal standards. If a judge is seen to display disregard to the law or community values, then this erodes trust in the institution.
Most judges remain unknown to the Australian public, Bathurst said, but when one is in the news for transgressing societal norms, citizens do become aware of them. And recent “allegations of sexual harassment by a judge” have drawn the public’s “justified concern and disgust”.
Sexual harassment is a major issue in the legal profession, where senior roles are still dominated by men. And this poor behaviour within the profession in general, dissolves trust in the judiciary, even though most complaints about judges are about bullying.
Bathurst recommends that mechanisms be established to address unacceptable behaviour that happens in the judiciary, and the law profession in general, as the public cannot be expected to trust that their disputes will be settled in court if internally there’s a culture of silence and concealment.
Addressing First Nations injustice
Lastly, the NSW Chief Justice turned to the benevolence of judges. He outlined that the community the judiciary is serving in NSW is extremely diverse, and this is reflected in the people that come before the courts.
Not everyone in the community trusts that the judiciary will deliver justice in their regard. This has been highlighted recently by the Black Lives Matter movement, as demonstrations across the country revealed a high-level of concern over the legal system not serving First Nations peoples.
Despite much of this distrust residing in police and corrections, Bathurst said, these institutions are inextricably linked to the judiciary. And “given the historical disenfranchisement, oppression and exclusion of” First Nations peoples by the justice system this distrust is understandable.
In building trust, he added, it must be remembered that these perceptions of unfairness are grounded in real injustices. And this is compounded when the role judges play in making First Nations people one of, if not the, most incarcerated people on the plant is considered.
Different levels of trust in the judiciary from different sectors of the community is deeply concerning, he went on, and it raises the issue of bias. This can lead to individuals not seeking redress in the courts, which can make matters spiral out of control in wider society.
Bathurst advised that this trust can be earnt by providing “culturally sensitive services that recognise the ongoing impacts of colonisation”.
And more broadly, the issue of diversity can be improved generally by moving away from the predominately “heterosexual, white, middle-class male” mould of the judiciary.
“To maximise the rich talent in the legal profession, it is important that steps are taken to ensure culturally and gender diverse talent ultimately results in a judiciary in which all members of the community can trust,” he added.
A fair go for all
In his final remarks, the Chief Justice reaffirmed that the judiciary must be aware of declining public trust in institutions and act upon it. And this must be earnt from every sector of society via the actions and behaviour of all judges.
Bathurst lastly posited that a small way for this to be achieve would be for “every judge to reaffirm their commitment to try and ensure every litigant who leaves the courtroom, regardless of whether they win, lose or draw, feels that they’ve had a fair, independent and courteous go”.