Judicial performance evaluation involves three distinct approaches: firstly, traditional approaches such as public scrutiny and appellate review; secondly, analysis of judicial attributes such as legal ability, impartiality, integrity etc; and thirdly, court and administrative performance measurement, with its emphasis on time and motion of collective judicial activity. The latter approach focuses on analysis of court performance, while the other two approaches focus on the individual judge. This thesis examines the performance of the judge as an individual.
Australians have not considered whether analysis of judicial attributes should become part of judicial methodology. Many view the traditional approaches of public scrutiny and appellate review as sufficient to maintain judicial standards. They fear attacks on judicial independence, potential misuse, misrepresentation, and misunderstanding of results associated with the analysis of judicial attributes and court and administrative performance measurement. They question who should administer and implement a judicial performance evaluation programme. Accountability for performance is seen as contrary to unwritten tradition and custom, which plays an important role in all matters concerning the judiciary (Shetreet S, Judges on trial. A study of the appointment and accountability of the English judiciary, North-Holland Publishing Company, Amsterdam, 1976, xviii).
My thesis critiques the traditional approaches of public scrutiny and appellate review and argues that the prospects of judicial self-improvement through structured feedback, improved assignment practices, and refined judicial education programmes are justification enough to embark on a programme examining judicial attributes.
My thesis is presented in eight chapters, involves consideration of eleven hypotheses, and the development of several themes. I report on the results of two surveys (barristers'survey, judicial officers'survey) and a series of judicial key informant interviews that I conducted to help test these hypotheses.
The hypotheses examine various criteria and measures of judicial performance evaluation and how both judicial officers and barristers react to them.
In general, the data supports the following seven hypotheses:
• The underlying rationales of the American Bar Association model for judicial performance evaluation are also present in Australia. This was the case for all except the following two rationales which were rejected by both Australian barristers and judicial officers:
(i) Individual judicial performance should be reported to the public;
(ii) Maintaining judicial salary packages (including superannuation) as offered on appointment, but offering bonuses based on performance. Performance being objectively and transparently evaluated against stated criteria.
Australian judicial officers also rejected a third rationale, namely whether:
(iii) A judicial performance evaluation programme should operate through a broadly based agency or committee comprised of persons of independent quality drawn from the bench, the bar, solicitors, and non-lawyers familiar with the judicial system.
Barristers were divided as to whether to accept or reject this third rationale.
The barristers' survey and judicial officers' survey results support the following hypotheses:
• The constructs, legal ability, impartiality, independence and integrity, temperament, diligence, communication skills, management skills, and settlement skills of the judge can be reliably measured by using survey instruments with barristers and with judicial officers.
The data did not support this hypothesis for judicial officers with respect to temperament or settlement skills.
• Criteria such as independence, integrity, and impartiality, which are critical elements of the judicial function, will be valued more highly than management and settlement skills.
• Legal ability will rate highly, but not be as important as independence, integrity, and impartiality.
The barristers' survey results support the following hypotheses:
• Permanent appellate judges' performance is superior to that of first instance judges. Such was the case for all criteria except judicial temperament.
• Judges 65 years of age or older will have lower performance ratings than younger judges.
• Younger barristers will rate judicial temperament lower than more senior barristers.
In general, the barristers' survey results do not support the following four hypotheses:
• Female judges will be rated significantly lower on all eight performance criteria compared with male judges. The hypothesis was supported for legal ability. independence and integrity, diligence, communication skills, and management skills, but was not supported for impartiality, temperament, or settlement skills.
• Judges in their first five years of office will have lower performance ratings than more senior judges. The results do not support hypothesis 8.
• Experienced barristers will rate judicial performance differently from inexperienced barristers.
•New South Wales Supreme Court judges will demonstrate higher levels of judicial performance than the judiciary of other (Australian) jurisdictions.
The latter hypothesis examined the effect, if any, of the New South Wales Judicial Commission on judicial performance in that State compared with other Australian jurisdictions. The results suggest that the reverse was the case for diligence, management, and settlement skills.
Several themes emerged from judicial key informant interviews. The themes expand on the summary findings in relation to each hypothesis.
The Australian judiciary operates with little feedback on judicial performance. There is also little evidence of reflective judicial self-improvement initiatives, nor implementation of judicial performance evaluation methodologies. A collegiate approach to performance evaluation both within and between courts is yet to emerge. The Australian judiciary has a poor notion of professional development.
The standard of existing Australian judicial performance evaluation methodologies falls below international comparatives. There is currently no reliable mechanism to identify, nor show best practice in relation to judicial performance evaluation of judicial attributes. There are no common judicial performance indicators, nor standards in place for performance evaluation of judicial attributes.
The movement towards judicial self-government requires an expansion of mechanisms for judicial accountability. Systematic performance evaluation directed at judicial self-improvement offers a useful form of internal accountability. Differing models of court governance may encourage piecemeal development of performance evaluation, reinventing the wheel, wasted resources, inconsistent approaches and poor practice.
Some courts and jurisdictions are moving considerably faster on aspects of performance evaluation than others. This is reflective of the fact that Australian courts differ significantly in their receptiveness to performance evaluation concepts. The conservative nature of the judiciary itself is an obstacle to change should this prove necessary. Judges are more satisfied with the current regime than those who use the courts (Parker S, Courts and the public, Australian Institute of Judicial Administration, Carlton South, 1998). Many judges would prefer to be ignorant of their performance rather than pursue self-improvement.
Judicial independence does not preclude the development of judicial performance evaluation programmes. Judicial performance evaluation should be conducted by the judiciary for the judiciary, as part of judicial method, without interference from other arms of government.
My research challenges existing theory in several respects. Australia has not previously had a comprehensive model for judicial performance evaluation. The traditional models have not previously been classified as aspects of judicial performance evaluation. A central aspect of judicial performance evaluation namely judicial attributes, has never been previously explored in Australia.
Structure of thesis
Chapter one develops a model for placing judicial performance evaluation within the context of the Australian legal system. The three different types of judicial performance evaluation are identified and discussed with reference to the model.
Chapter two examines the criteria and measures used to analyse judicial attributes in the United Kingdom, United States, and Canada. Eight broad criteria are identified, which are used in chapter 7 to develop an Australian model.
Chapter three describes the methodology of three studies employed that contribute to this thesis: a national barristers' survey, a national judicial officers' survey, and judicial key informant interviews. The chapter describes all data sources and methods of analysis, and some methodological issues associated with interpreting the data. The chapter describes how the results of the three data sources will be compared and contrasted throughout this thesis in the context of the literature to which they relate. This multi-method approach involves a combination of qualitative and quantitative methods, useful in analyzing the issues from different perspectives.
Chapter four critiques the traditional approaches to judicial performance evaluation. The approaches include public scrutiny, media surveillance and reporting, appellate review, executive and parliamentary accountability, the role of the legal profession, legal publishers, academic commentary, peer pressure by Chiefs Justice and other administrative judges, and judicial self-analysis.
Chapter five considers the arguments against the analysis of judicial attributes. Such arguments include whether the potential for misuse and misunderstanding of results, concerns over the reliability of results, and the risk to separation of powers and judicial independence are such that performance evaluation of judicial attributes is unnecessary or counter-productive.
Chapter six examines the arguments in favour of judicial performance evaluation. Such arguments include how judicial performance evaluation can provide useful feedback for judicial self-improvement, lead to improved assignment practices, and refinement of judicial education programmes.
Chapter seven develops an Australian model for judicial performance evaluation based on the eight criteria identified in chapter two. The question and extent, if any, to which Australia may borrow from the United States'experience with judicial performance evaluation is discussed. The issue of weightings attached to each criterion is also considered.
Chapter eight completes this thesis by summarizing all objectives, themes, findings, and conclusions before making recommendations and suggestions for future research.
Three broad recommendations emerge from the results:
• The Australian Institute of Judicial Administration, Council of Chiefs Justice, and Judicial Conference of Australia should encourage research into judicial performance evaluation and its linkages to judicial self-improvement and judicial education.
• The judicial performance evaluation criteria and measures I have described, should be tested by a pilot programme implemented in an Australian superior court. The process has commenced in the Supreme Court of South Australia with the assistance of the Australian Institute of Judicial Administration.
• Consideration should be given to creating a centre within an Australian University to offer judicial performance evaluation services to those courts wishing to investigate implementing a judicial performance evaluation programme directed at judicial self-improvement.