Judicial Ethical Guidance in Australia

Judiciaries have varied sources that identify required, expected, or desired judicial conduct and demeanor. These can be thought of as articulating attributes of the imagined judge or as a component of an ethical infrastructure of the judiciary. Some jurisdictions have official codes of conduct enforced by formal disciplinary processes. For example, in the United States, the American Bar Association’s Model Code of Judicial Conduct (2011), or ABA Code, has been adopted (or adapted with some modification) by most states. These states, in turn, have established judicial conduct commissions to investigate complaints against judicial officers, and where founded, impose disciplinary sanctions (Gray Reference Gray2007).

Guidance about judicial conduct may also be found in statements of appropriate or desirable judicial conduct that may (or may not) be enforceable via formal discipline procedures.Footnote ⁶ The Bangalore Principles of Judicial Conduct is an example (United Nations Office on Drugs and Crime 2002). It provides normative statements that indicate how judicial officers ought to conduct themselves, and it offers or implies standards of good judging.Footnote ⁷

Various “artifacts” of judicial work (Maroney Reference Maroney, Conway and Stannard2016), including written decisions, extracurial publications, presentations, and personal accounts, may also indicate qualities of the imagined judge and become part of the ethical infrastructure. Other sources of ethics guidance include professional development or judicial education programs, conferences or seminars, and benchbooks. Any of these additional components of the ethical infrastructure might address the demands for and practical strategies regarding emotion work in courtroom contexts (Roach Anleu, Elek, and Mack Reference Roach Anleu, Elek and Mack2019).Footnote ⁸

This article focuses on published guides to judicial conduct. These are readily accessible to all judicial officers in ways that other diverse sources may not be. Formal statements can go beyond practical or instrumental functions and may have symbolic or expressive importance for the judiciary as a whole as well as for individual judicial officers, providing an identifiable compendium of broad professional norms and values.

In Australia, two published sources offer ethical guidance untied to any formal disciplinary mechanism or process. The AIJA Guide, now in its third edition (2017), was developed by the Australasian Institute of Judicial Administration and approved by the Council of Chief Justices of Australia and New Zealand. The AIJA Guide does not provide a formal or official basis for judicial discipline in the way the ABA Code is used.Footnote ⁹ It states, “This publication does not purport to be a code in any sense of that word, or to lay down rules. It purposely avoids using the expression ‘judicial ethics’ or describing conduct as ‘unethical’” (AIJA 2017, 2 [1.2]). It supports an image of the individual judge as part of a self-regulating profession, independent of external regulation or requirements. Despite this disclaimer, the AIJA Guide can still be regarded as part of the ethical infrastructure of the Australian judiciary because it propounds normative expectations for judicial conduct.

The AIJA Guide articulates three objectives—public confidence, respect, and reputation—based on three basic principles: impartiality, judicial independence, and integrity and personal behavior (AIJA 2017, 5 [2]). These principles are similar to other sources, whether or not they have a formal regulatory function. The ABA Code emphasizes the importance of “public confidence in the independence, impartiality and integrity of the judiciary” (ABA 2011, canon 1 and rule 1.2),Footnote ¹⁰ as does the Bangalore Principles, in which value 1 is independence, value 2 is impartiality, and value 3 is integrity (United Nations Office on Drugs and Crime 2002; see also Devlin and Dodek Reference Devlin and Dodek2016).

The other key source for Australia is Judicial Ethics in Australia, written by James Thomas, a former judge of the Queensland Court of Appeal, published in three editions, each increasing in scope and detail (Thomas Reference Thomas1988, Reference Thomas1997, Reference Thomas2009). Like the AIJA Guide, Thomas’s Judicial Ethics is influenced by standards set by a variety of international organizations and other nations. In contrast to the AIJA Guide, Thomas explicitly frames concerns about judicial conduct as a matter of ethics. While this book has no official standing, it is nonetheless also part of the ethical infrastructure of the Australian judiciary. The AIJA Guide acknowledges reliance on it, and it has been described as “a pioneering work” (Sackville Reference Sackville2015, 245). Its importance derives from its status as the first Australian publication of its kind.

Thomas’s Judicial Ethics does not systematically enunciate guiding principles; rather, it is designed to “assist a reasoned solution to many types of ethical difficulty” using “actual … examples of behaviour” (Thomas Reference Thomas2009, xv). This will sometimes involve the mention of features of judicial conduct that Thomas regards as essential. For example, hearing both sides is described as “one of the fundamental principles of the system” (22 [4.3]) and is emphasized elsewhere in relation to judicial misconduct of various sorts (e.g., 23–24 [4.3], 24 [4.6]). It provides many anecdotes and examples, drawn from the distant and recent past and from several jurisdictions around the world. The book “range[s] from matters of serious principle down to matters of mere etiquette” (7 [1.11]). Its focus is more on misconduct and considers the (in)appropriateness of formal discipline in relation to many of the examples, often with a strong dose of the author’s personal opinions (Ehlers Reference Ehlers2010).

The Imagined Judge

The AIJA Guide and Thomas’s Judicial Ethics, along with the sources that influence them, describe judicial conduct and the values of an imagined judge who is impartial and emotionally detached. The AIJA Guide states that “it is important for judges to maintain a standard of behaviour in court that is consistent with the status of judicial office and does not diminish the confidence of litigants in particular, and the public in general, in the ability, the integrity, the impartiality and the independence of the judge. It is therefore desirable to display such personal attributes as punctuality, courtesy, patience, tolerance and good humour” (AIJA 2017, 19 [4.1]). It continues: “The entitlement of everyone who comes to court—counsel, litigants and witnesses alike—to be treated in a way that respects their dignity should be constantly borne in mind… . The absence of any intention to offend a witness or a litigant does not lessen the impact,” adding that “a judge must be firm but fair in the maintenance of decorum, and above all evenhanded” (19 [4.1]).

The judicial qualities desired for in-court interaction are described in very similar terms by the ABA Code. Rule 2.8A provides that “a judge shall require order and decorum in proceedings before the court,” and rule 2.8B states that “a judge shall be patient, dignified, and courteous” (ABA 2011). The Bangalore Principles states that “a judge shall maintain order and decorum in all proceedings before the court and be patient, dignified and courteous” (United Nations Office on Drugs and Crime 2002, [6.6]).

Regardless of the formal authority of the source or the disciplinary consequences, the expected or desired judicial conduct is articulated in strikingly similar terms, suggesting these qualities are essential attributes of the imagined judge. These requirements reflect qualities of detachment or distance, understood to be markers of impartiality and necessary for maintaining public confidence in the judiciary (Green and Roiphe Reference Green and Roiphe2008). The emphasis on the status of the judicial office and on being firm and maintaining decorum reinforces the view that “the ideal judge, as described by codes of judicial conduct, is unreadable, detached, and impersonal” (Lens Reference Lens2016, 714). The need for fairness and being evenhanded reflects the ideal of impartiality and links to the need for decorum, reinforcing the idea of judicial authority as formal and impersonal and the imagined judge as detached and emotionless.

At the same time, the AIJA Guide characterizes these and other important qualities as “personal attributes”: punctuality, courtesy, patience, tolerance, and good humor (AIJA 2017, 19 [4.1]). The display of these qualities appears to be thought to convey a judicial officer’s individual capacities and conduct, rather than being attributes of the formal legal judicial role that should be manifested regardless of personal differences. These admonitions, along with the expectation of recognizing the dignity of those who come to court, implicitly acknowledge the importance of social interaction and interpersonal skills to judicial work. Further, the guidelines assume that others in court may be acting in ways that demand judicial patience, courtesy, and tolerance or the maintenance of decorum.

Later, the AIJA Guide points out that “particular care should be taken to avoid causing unnecessary hurt in the exercise of the judicial function. This includes taking care about comments made in court … and observations made in reasons for judgment or in remarks on sentence” (AIJA 2017, 21 [4.8]). The “hurt” referred to appears to include emotional hurt as well as other harms, such as loss of privacy. This is the only occasion in which the Guide refers directly to emotional aspects of in-court judicial conduct and communication. This is a rare specific exhortation for judicial officers to engage in the management of the emotions of others involved in the court process.

In contrast, Thomas’s approach is less abstract; Judicial Ethics provides many anecdotes and examples, nearly always of poor judicial behavior. By emphasizing what the judge ought not do, Thomas vividly depicts the opposite of the imagined judge. These examples of judicial deviance reinforce the importance of the courtesy, patience, decorum, and detachment expected of the imagined judge (Roach Anleu Reference Roach Anleu2006).

Notably, Judicial Ethics frequently uses the explicit language of emotion to characterize unethical behavior. It describes the emergence of impatience, frustration, aggression, or hostility. Thomas (Reference Thomas2009, 31 [4.18]) points out that “judges deal daily with highly charged events and troublesome social issues, and must state reasons for the solution they choose… . Years of judicial experience and of temperate judging are forgotten when a misguided statement comes out.” This passage contains direct emotion language to describe the judicial role. The “highly charged” and “troublesome” cases that come before the court generate emotional responses, perhaps in the parties to the case, the legal representatives, the public, or even the judicial officer. The praise for “temperate” judging implies the value of well-managed emotions on the part of the judicial officer. However, according to Thomas, “from time to time, judges make needless remarks that cause offence to litigants or community groups” (31 [4.18]). Describing the response as an “offence” implies an emotional response on the part of listeners or others aware of the statements.

The qualities and conduct endorsed (or criticized) in these sources are about presentation of the judicial self. These precepts identify institutionally specific emotions or emotion display (Goffman Reference Goffman1959)—dignity, decorum, courtesy, and patience—that are compatible with judicial detachment or impersonality. Their accomplishment can support a perception of judicial impartiality and reinforce the imagined judge. However, the interactional nature of in-court work can make the achievement of these qualities depend on emotion management, which is neither explicitly recognized nor articulated in ethical guidance but necessarily implied.

This raises the question of how judicial officers manage the “fit” between their emotional experiences of judicial work and the ethical guidance that presupposes the detached, emotionless, impersonal judge, reflected in qualities such as dignity or maintaining decorum. In-depth, face-to-face interviews with judicial officers throughout Australia address this question.

Research Design

In-depth, face-to-face interviews with judicial officers throughout Australia are essential to understand the emotional experiences of judicial work, to gauge the fit between judicial accounts and the ethical guides, and to understand the implicit or informal elements of the ethical infrastructure and the imagined judge. In the absence of other sources that flesh out the more general or aspiration guidance, interviews enable investigation of the less formal or less visible elements of the judicial ethical infrastructure and reveal more depth about the nature of the imagined judge. Interviews were semistructured, with questions based around key issues identified from the authors’ previous research. Interview questions were open-ended, allowing interviewees to discuss a full range of issues from their own perspective and in their own words, based on their experiences and knowledge (Silverman Reference Silverman, Denzin and Lincoln2000, Reference Silverman2015; Mason Reference Mason2002; Denzin and Lincoln Reference Denzin and Lincoln2005; Gubrium et al. Reference Gubrium, Holstein, Marvasti and McKinney2012; Holmes Reference Holmes2015).

Potential interviewees were identified from lists of all judicial officers, obtained primarily from court websites, informed by suggestions from judicial officers, the four pilot interviews, academics who have worked with judicial officers in a variety of capacities, and the Australian authors’ own knowledge of and experience with judicial officers throughout Australia. The aim was to obtain a wide cross-section of the judiciary. The 38 interviewees come from all levels of court in every state and territory in metropolitan ( $N=31$ ) and regional/suburban locations ( $N=7$ ) but not federal courts. Nineteen of the interviewees are men, and 19 are women. Seventeen of the interviewees are magistrates (10 women; seven men); the others are judges (nine women; 12 men).

All interviews were conducted between August 2012 and December 2013. Interviews ranged in length from 25 minutes to 1 hour and 33 minutes, all undertaken by Sharyn Roach Anleu. Extensive analysis of the transcript data was undertaken using the software package NVivo. Following several readings of the transcripts, recurrent themes were identified and nodes developed to capture the complexity of emotion management (as well as other themes from the interviews). The interviews were double-coded by Sharyn Roach Anleu and a research assistant, paying special attention to different interpretations and the need for multiple codes for this textual data.

Discussion about emotion emerged in different ways during the interviews, most often in response to specific questions about the importance of interpersonal skills or the stressful nature of the job. Probes or follow-up questions might ask specifically about the role of emotion or emotion management in everyday judicial work. Questions about other aspects of work, such as understandings of impartiality, also elicited responses regarding perceptions and experiences of emotion among judicial officers.

Scheer (Reference Scheer2012, 218) poses the question, “How do we know when a source is talking about an emotion?” Some interviewees used specific emotion words such as “anger” or “frustrated” or referred more generally to their feelings in the situations they described. Sometimes interviewees described physical manifestations of emotion such as feeling sick or crying. Similarly, in describing other court participants, some interviewees directly labeled their demeanor or conduct as emotional or as indicating specific emotions such as anxiety, distress, or anger, or they identified behavior such as shouting to imply a particular emotion. Emotion can also be implicit, as when an interviewee discussed a situation that clearly entails emotion, such as the experience of a victim of a serious crime, without using explicit emotion words.

In these interviews, judicial officers describe their experiences of emotion and emotion work in court and their perceptions of other participants’ emotions. These interview findings do not indicate the frequency or distribution of emotion across courtrooms generally, where much of the interaction is routine, ordinary, and businesslike (Mack and Roach Anleu Reference Mack and Roach Anleu2010; Travers Reference Travers2017; Tata Reference Tata2019). Other research methodologies, such as court observations, can investigate what judicial officers do as distinct from what they say they do. The aim of this article is to investigate judicial officers’ experiences and perceptions of emotion work, in light of limited formal ethical and conduct guidance.

Judicial Officers’ Perceptions and Experiences of Emotion and Emotion Work

Judicial ethics guidance describes the imagined judge as one who displays dignity, decorum, courtesy, and patience. Interview data demonstrate judicial understanding of the meaning and importance of these qualities in everyday work and the emotion management strategies they use to achieve the specified qualities. These everyday practices simultaneously reproduce and modify the imagined judge.

Discussion: Comparing Judicial Experience with Ethical Guidance

Comparing the general or abstract statements in the AIJA Guide, and the more extensive anecdotes in Thomas’s Judicial Ethics, with the actual emotional experiences and practices of judicial officers in their everyday work illustrates important elements of the ethical infrastructure in Australia and the qualities of the imagined judge. Judicial officers describe emotion-dense situations in court. They sometimes use the language of emotion or refer to specific emotions—for example, empathy, anger, frustration—when describing their experience, or they describe their approach as valuing or relying on an emotion. Others speak of their emotional reactions in behavioral terms such as raising or lowering their voices, or they describe the physical conduct of others that indicate emotions, such as crying or shouting. Interviewees sometimes talk about emotion when they describe situations, such as taking account of a victim’s experience, that involve emotion, but they do not specifically label an emotion as such.

Through these descriptions, judicial officers articulate their conceptions of the judicial role and its boundaries. These conceptions locate formal ethical requirements or articulate informal norms about appropriate judicial conduct and expression as components of the wider ethical infrastructure. They also reveal, and challenge, attributes of the imagined judge.

Judicial emotion management requires identification of some judicial emotion or related conduct as appropriate or inappropriate in the courtroom when assessed against qualities of the imagined judge (Roach Anleu, Mack, and Tutton Reference Roach Anleu, Mack and Tutton2014). Attributes consistently articulated by the AIJA Guide (and the ABA and other sources) include patience, courtesy, dignity, and decorum either as an achieved emotional state or as a display. Thomas’s Judicial Ethics identifies other displays such as rudeness or impatience as violations of the qualities expected of judicial officers.

When judicial officers themselves describe the emotional aspects of their everyday work and the strategies they use to respond, they often frame their practices in terms of the qualities and values identified in the AIJA Guide such as patience, or they frame them in terms of the conduct that is to be avoided, such as impatience as discussed by Thomas. Only one interviewee explicitly mentioned the AIJA Guide; this person also mentioned Thomas’s work and the breadth of US materials on ethics. While the behaviors articulated by the AIJA Guide or Thomas are a key reference point for the Australian judiciary in regulating and reflecting on their own conduct, and while they appear to be part of their ethical infrastructure, interviewees do not specifically identify the AIJA Guide or Thomas as sources. This may reflect Shetreet’s (Reference Shetreet and Shetreet2014, 294) claim that the content of recent written guides is mainly “declaratory of … existing standards.”

The vivid and emotionally explicit narratives from the judicial officers interviewed contrast with the generic and abstract exhortations or admonitions contained in the AIJA Guide. Overall, the wording of the AIJA Guide, the ABA Code, and the Bangalore Principles as it might relate to judicial emotion is general (“patient, dignified, and courteous”). While such statements imply emotional demands and emotion work to achieve these desired qualities, they do not use the language of emotion. In contrast, Thomas’s Judicial Ethics sometimes uses emotion language, especially when describing specific instances of judicial misbehavior, misconduct, and poor emotion management, but there is little positive guidance. Across these sources, there is very little or no concrete behavioral guidance as to how judicial officers are to achieve these emotional and behavioral goals.

The interviews reveal a range of strategies that judicial officers adopt to manage emotions and achieve an appropriate emotional climate in the courtroom. These strategies aim to maintain overall courtroom decorum and their own dignity as judicial officers; they also aim to respect the dignity of others and thereby elaborate their understanding of the judicial role, reproducing and modifying the imagined judge (Remiche Reference Remiche2015).

As revealed in the interviews, the relationships among the desirable and undesirable qualities are complex. Maintaining decorum may involve being patient or courteous, or it may require different approaches such as insisting on greater formality or speaking sternly, when patience is no longer effective. As Maroney (Reference Maroney2012, 1214) notes, anger can be justified and “be a legitimate basis for judicial action.” Courtesy, patience, dignity, and decorum may be displayed strategically to generate desired emotions, either in the judicial officer or in others in the courtroom. Sometimes judicial officers demand of themselves that they subjectively feel patient and attempt to induce this feeling, to meet the expectations of dispassion. In other cases, they may behave in ways that indicate or display patience or avoid displaying the frustration or impatience they feel subjectively, to maintain the image of the imagined judge as dispassionate and detached.

As well as managing their own emotions and emotion display, judicial officers must manage others’ emotions. One way this can be accomplished is by displaying the patience, tolerance, and courtesy indicated by the ethical precepts. This appearance may be aimed at eliciting a desired emotion in another court participant, for example, to put court users at ease, so that they are not anxious or frightened, or to elicit appropriate reciprocal behavior from those in court. This, in turn, maintains the dignity or decorum of the courtroom as a whole. Many of the strategies and practices judicial officers rely on to manage the emotions of others are personal or embodied, such as tone of voice or facial expressions, or a specific verbal acknowledgment of the emotions a court user may appear to be feeling, such as anxiety or stress.

As described in the interviews, there are clear limits to the observance and display of the prescribed qualities; these may reflect the competing objectives judicial officers must balance in the limited time available in the courtroom. Concerns about courtroom control and time management lead judicial officers to interrupt, to prod or prompt legal representatives, or to become stern or even shout. In some circumstances, this conduct may even be appropriate (Maroney Reference Maroney2012). The demand for and use of emotion depends on context and requires varied emotion strategies on the part of the judicial officer.

Conclusion

Judicial officers across different courts throughout Australia describe complex emotional experiences and management demands; however, this research discloses a substantial lack of fit between the needs of judicial practice and the available guidance. The current AIJA Guide says little directly about emotion or emotion management. This is also true of similar provisions of the ABA Code or the Bangalore Principles. These sources identify qualities such as patience and courtesy, which are thought to communicate impartiality and so engender public confidence. There is limited recognition that these positively required behaviors may be difficult to maintain in the face of strong emotion or provocation. In contrast, Thomas’s Judicial Ethics identifies behaviors that are not acceptable and names judicial emotions that may underlie such conduct. Undesirable judicial behaviors that may be the result of subjective judicial emotion or lack of emotion management are criticized by Thomas because of their inconsistency with the core value of impartiality and their potential to damage public confidence. While these two sources are important components of the Australian ethical infrastructure, neither Thomas’s Judicial Ethics nor the AIJA Guide provides substantial, positive, proactive behavioral guidance on emotion work or emotion management strategies to achieve decorum, patience, courtesy, or dignity in an emotionally demanding and often time-pressured environment.

This research also suggests that the available sources usually consider only individual conduct, framed as “personal,” and do not pay sufficient attention to the courtroom as an interactive context and the various episodes, moments, and situations that judicial officers encounter as they approach their tasks (Roach Anleu and Mack Reference Roach Anleu and Mack2017). As one analysis of judging points out, “Beginning with a definition of a good judge or good judging causes us to focus too much on the qualities or characteristics of [individual] judges, and not enough on the nature of the context or environment in which they make decisions” (Wistrich Reference Wistrich, Klein and Mitchell2010, 257).

This research demonstrates the ways that the imagined judge, while a cultural construct, is not static, but can shift, albeit slowly. In everyday work, a judge must simultaneously embody the law and the related values of dispassion, and he must engage in a social relational context or interaction order in which behavior and activities must be coordinated and emotions managed in ways that are not anticipated by the available ethical guidance (Ridgeway Reference Ridgeway2006). As a result, the imagined judge is both reproduced and modified through the everyday conduct of judicial officers.

Goodman (Reference Goodman2013, 957) suggests risks are posed by the judiciary taking “‘dispassionate judging’ to the extreme” and so losing “sight of the humanity” of others in the court. This suggests that the qualities of the imagined judge should place less emphasis on detachment and dispassion and more on compassion and other human or engaged qualities.

It is important that codes, ethical culture, and judicial leadership are complementary and relate to actual judicial practice. Over time, everyday judicial work may drift from an ethical code or conduct guide’s characterization of the imagined judge, creating tension. The question this article asks is whether that point is now, especially in relation to the emotion aspects of judicial work. The research findings suggest that it is time for judicial leaders to reconsider whether the current judicial guides and codes adequately accommodate the emotional realities of contemporary judging.

The current approaches to judicial ethics in Australia provide primarily abstract precepts (AIJA Guide) or anecdotes of poor judicial conduct (Thomas). Both concentrate on the conduct of individual judicial officers. Sources in other jurisdictions (e.g., the ABA Code) describe conduct in similar abstract terms but within a much different ethical infrastructure, which includes elaboration of the code provisions and complaint and discipline processes to flesh out and apply general precepts, as well as national and local judicial mentoring and education programs (although there may be little or no coordination among these resources). As these research findings show, the experiences and insights of judicial officers themselves can provide concrete direction for developing and expanding ethical guidance that recognizes and assists with the judicial work of managing emotions.

Ultimately, addressing the considerable variety and intensity of judicial emotions and demands for emotion management will require more than revising general guidelines. It will be necessary to engage many elements of ethical infrastructure, including professional development programs and other sources, much more broadly and to explicitly reconstruct the imagined judge, to more closely reflect the realities of judicial practice and culture.