McGuire, F. M. (Frederick M.), 1929-

University of Queensland eSpace

Review: 
Judicial Ethics in Australia 
by The Honourable Mr Justice Thomas 
Reviewed by Judge McGuire 
He is an intrepid mariner indeed who is so bold as to venture into 
uncharted waters. Recently, Mr Justice Thomas, a distinguished 
Judge of the Supreme Court of Queensland, sailed the good ship 
"Judicial Ethics in Australia" through such water without being 
shipwrecked. This must be rated a remarkable achievement indeed 
for he has dared to go where others have been loath to venture. The 
final product is a veritable vade-mecum for Australian Judges on the 
thorny question of judicial ethics. 
Mr Justice Thomas says that he was prompted—nay provoked— 
to sally forth on this turbulent course because of his disquiet at the 
judiciary's loss of public esteem over the past few years. He attributes 
this loss of esteem to the adverse publicity generated by three cases 
which achieved public prominence involving members of the 
judiciary: a High Court Judge, a Chief Magistrate and a District 
Court Judge. 
Australian Judges of Superior Courts can only be removed by 
Parliament for proved misbehaviour or incapacity. Mr Justice 
Thomas rejects the notion that "misbehaviour" in that sense must be 
so extreme as to invoke the criminal law. He adopts the traditional 
test for determining whether conduct is unprofessional. Conduct will 
amount to misbehaviour "if it violates or falls short of, to a 
substantial degree, the standard of professional conduct observed or 
approved by members of the profession of good repute and 
competency." 
As Mr Justice Thomas is at pains to point out, the judiciary is an 
exposed profession. With rare exceptions, all hearings are public. 
The ipsissima verba of what passes from the Bench is recorded. The 
press are entitled to make a fair report of a case. Nearly all decisions 
at first instance are subject to review by an Appellate Court. A Judge 
will be careful to see that the trial is fairly and properly conducted 
if he realises that any unfairness or impropriety on his part will be 
noted by those in Court and may be reported in the press. As Lord 
Denning reminds us: "when a Judge sits on a case he himself is on 
trial. If there is any misconduct on his part, any bias or prejudice. 
267 
there is a reporter to keep an eye on him." Lord Denning describes 
the press as "the watchdog of justice". 
But there are other checks on a Judge: the appeal's system, the 
Chief Justice, fellow Judges and lack of professional esteem. 
Notwithstanding these inbuilt checks and balances, which 
traditionally have proved sufficient to remind and discipline an 
errant Judge, Mr Justice Thomas thinks that, in the light of recent 
disturbing happenings involving the judiciary, the time has come to 
investigate the conventions which govern the conduct of Judges on 
and off the Bench. 
Mr Justice Thomas favours the articulation of judicial standards. 
Indeed, he is not opposed to codifying them. In his book he 
articulates the standards he thinks should apply to the judiciary 
lucidly and fearlessly and with palpable honesty of purpose. Nothing 
escapes his percipient mind. No stone is left unturned except one, 
namely the method of selection of Judges. He touches on such 
diverse topics as headline hunting, involvement in public causes, 
political activity, sexual misconduct, drinking in public bars, use of 
official letterheads for private purposes, punting, judicial activism, 
and Judges participating in commissions of inquiry. He even quotes, 
apparently approvingly. Sir Matthew Hale's injunction to himself 
"to be short and sparing at meals that 1 may be fitter for business." 
For these reasons, amongst others, Mr Justice Thomas says that 
"the ethical standards required of our Judges call for perhaps the 
highest and most rigorous standards, sacrifices and disciplines of any 
profession". A Judge must be circumspect in his behaviour both in 
Court and out of Court. 
Mr Justice Thomas glosses over what, to my mind, is an important 
topic for discussion in such a work, namely the method of 
appointment of Judges. Whilst recognising that the maintenance of 
ethical standards and the preservation of public confidence in the 
judiciary are dependent on governments making appointments on 
merit only, and that if this policy is invariably adopted it is most 
unlikely that serious ethical problems will occur, he nevertheless 
asserts that the topic is "beyond the ambit of this book". 1 should like 
to think that Mr Justice Thomas will return to this vital topic at some 
later time, for it seems to me, that if a broad consultative process is 
adopted in the appointment of Judges, serious flaws of temperament, 
personality and character of a prospective candidate will almost 
always surface thereby enabling a thorough examination of those 
defects before a final decision is made. 
In 1986 the Lord Chancellor issued a policy statement on judicial 
appointments. In it he stated that the quality of justice is largely 
determined by the quahty of the Judges who preside. He says: "I am 
always ready to consider suggestions from any quarter. Our 
268 
aspiration is to ensure that the methods of selection are as efficient, 
fair and open as they can be made, and to maintain the highest 
possible standards of ability and integrity on the Bench." A guiding 
principle of the Lord Chancellor's approach is that, as far as possible, 
no one person's view about a candidate, whether positive or negative, 
should be regarded as decisive in itself, however authoritative or 
eminent the person giving it. By contrast, the independent view of 
a spread of observers and colleagues in a position to assess the 
candidate's work and personality over a sufficiently long time is 
treated as having great weight, especially if it reveals a consensus or 
a clear predominance of view. 
If one were to attribute an appropriate moral to Mr Justice 
Thomas' work, it is assuredly Lord Atkin's aphorism: "Justice is not 
a cloistered virtue". 
Mr Justice Thomas has exposed hidden recesses where lurk 
judicial folly or the danger of it. The book offers the judiciary a 
timely warning of practices to eschew. The judiciary of Australia, 
and the legal profession generally, are in his debt for his outstanding 
contribution to a hitherto silent subject. It must not be thought, 
however, that the book is for Judges and lawyers alone. It is about 
a topic which arouses the thinking man's curiosity. To boot, it lacks 
nothing in style and readability. 
(Judicial Ethics in Australia by the Honourable Mr Justice 
Thomas, published by the Law Book Company Limited; price 
$25.00.) 
* • • • • 
(Reviews of significant works are published in the journal as space 
permits. Intending reviewers are advised to communicate with the 
Editor first.) 


Review: Judicial ethics in Australia

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