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Reforming Responses to the Challenges of Judicial Incapacity

Published online by Cambridge University Press:  01 January 2025

Andrew Lynch  and
Alysia Blackham
Andrew Lynch*
Affiliation:
Gilbert + Tobin Centre of Public Law, Faculty of Law, UNSW
Alysia Blackham*
Affiliation:
Melbourne Law School, The University of Melbourne
*
The author may be contacted at a.lynch@unsw.edu.au.
The author may be contacted at alysia.blackham@unimelb.edu.au.
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Abstract

Judicial incapacity, while under-researched, presents unique challenges for supporting and responding to issues of judicial performance. In this article, we argue for a reconceptualisation of this topic based on contemporary theories of socially-constructed disability and principles of anti-discrimination law. While assisting and supporting judicial officers who are attempting to work with a disability or ongoing health issue will always be complex, this reconceptualisation offers heads of jurisdiction, conduct commissions and parliamentarians, who retain the ultimate sanction of removal, the opportunity to craft a surer guide for handling cases of incapacity. This will not only better serve the individual concerned, affording them greater agency and dignity than has traditionally been the case, but also protect the principle of judicial independence.

Type
Articles
Information
Federal Law Review , Volume 48 , Issue 2 , June 2020 , pp. 214 - 246
Copyright
Copyright © 2020 The Author(s)

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Footnotes

The authors acknowledge the assistance, at different times over several years of researching this topic, of Emily Burke, Isabel Chong and Hernan Pintos-Lopez.

References

1. Gabrielle Appleby et al, ‘Contemporary Challenges Facing the Australian Judiciary: An Empirical Interruption’ (2019) 42(2) Melbourne University Law Review 299, 354.

2. Ibid.

3. Ibid.

4. Rosemary Laing (ed), Odgers’ Australian Senate Practice: As Revised by Harry Evans (Department of the Senate, 14th ed, 2016) 705.

5. This is not to ignore the utility of guides to judicial conduct, but these themselves tend to emphasise that they are not intended to be prescriptive. See, eg, Australasian Institute of Judicial Administration, Guide to Judicial Conduct (3rd ed, 2017) 1 [1.1]. See further Gabrielle Appleby and Suzanne Le Mire, ‘Judicial Conduct: Crafting a System That Enhances Institutional Integrity’ (2014) 38(1) Melbourne University Law Review 1, 51–3.

6. Appleby and Le Mire (n 5) 9.

7. Ibid 24, 59.

8. See, eg, Commonwealth, Parliamentary Debates, House of Representatives, 5 September 2005, 18 (‘Duncan Kerr’).

9. See, eg, Susan Denham, ‘The Diamond in a Democracy: An Independent, Accountable Judiciary’ (2001) 5(1) Judicial Review 31, 38; Michael Kirby, ‘Judicial Stress’ (1995) 13(2) Australian Bar Review 101, 104–13 (‘Judicial Stress’).

10. Carly Schrever, Carol Hulbert and Tania Sourdin, ‘The Psychological Impact of Judicial Work: Australia’s First Empirical Research Measuring Judicial Stress and Wellbeing’ (2019) 28(3) Journal of Judicial Administration 141, 163.

11. Beyond Blue, Annual Professions Survey: Research Summary (April 2007) Judicial College of Victoria 2–3 <https://www.judicialcollege.vic.edu.au/sites/default/files/2019-07/2007%20-%20Beyond%20Blue%20-%20Annual%20Professions%20Survey.pdf>. Encouragingly, four years later, lawyers ‘reported the highest levels of mental health training’ of the professions surveyed and were ‘the professional group most likely to have completed the Beyond Blue National Workplace Program training’. However, in 2011 ‘compared to other professions, lawyers felt their organisations were less likely to actively help an individual seek treatment’: Beyond Blue and Beaton Consulting, 2011 Annual Business and Professions Survey: Research Summary (May 2011) 3 <https://das.bluestaronline.com.au/api/BEYONDBLUE/document?token=BL/0903>.

12. Beyond Blue (n 11) 3.

13. Janet Chan, Suzanne Poynton and Jasmine Bruce, ‘Lawyering Stress and Work Culture: An Australian Study’ (2014) 37(3) University of New South Wales Law Journal 1062, 1063.

14. Being the differences in the work, the aptitude shown by those selected for judicial office and the mature age of judicial appointment: see Schrever, Hulbert and Sourdin (n 10).

15. Appleby et al (n 1).

16. Alysia Blackham, ‘Reconceiving Judicial Office through a Labour Law Lens’ (2019) 47(2) Federal Law Review 203.

17. Alysia Blackham, ‘Judges and Retirement Ages’ (2016) 39(3) Melbourne University Law Review 738; Alysia Blackham, ‘Judicial Retirement Ages in the UK: Legitimate Aims and Proportionate Means?’ [2017] 2 Public Law 196; Brian Opeskin, ‘The High Cost of Judges: Reconsidering Judicial Pensions and Retirement in an Ageing Population’ (2011) 39(1) Federal Law Review 33; Brian Opeskin, ‘Models of Judicial Tenure: Reconsidering Life Limits, Age Limits and Term Limits for Judges’ (2015) 35(4) Oxford Journal of Legal Studies 627 (‘Models of Judicial Tenure’).

18. See, eg, Rachel Davis and George Williams, ‘Reform of the Judicial Appointments Process: Gender and the Bench of the High Court of Australia’ (2003) 27(3) Melbourne University Law Review 819; Graham Gee and Erika Rackley (eds), Debating Judicial Appointments in an Age of Diversity (Routledge, 2017); Elizabeth Handsley and Andrew Lynch, ‘Facing Up to Diversity? Transparency and the Reform of Commonwealth Judicial Appointments 2008–13’ (2015) 37(2) Sydney Law Review 187.

19. Brian Opeskin, ‘The Supply of Judicial Labour: Optimising a Scarce Resource in Australia’ (2017) 7(4) Oñati Socio-Legal Series 847.

20. James Thomas, Judicial Ethics in Australia (LexisNexis, 3rd ed, 2009) 55–6.

21. Elizabeth Handsley, ‘Public Confidence in the Judiciary: A Red Herring for the Separation of Judicial Power’ (1998) 20(2) Sydney Law Review 183, 187.

22. The latter sense in which judges should be independent has tended to receive less attention than incursions from the other arms of government, but on this see Murray Gleeson, ‘The Right to an Independent Judiciary’ (2006) 16 Commonwealth Judicial Journal 6, 12; JD Heydon, ‘Threats to Judicial Independence: The Enemy Within’ (2013) 129(2) Law Quarterly Review 205.

23. JWF Allison, The English Historical Constitution: Continuity, Change and European Effects (Cambridge University Press, 2007) 81.

24. The modern equivalent of the relevant provision for judges on the United Kingdom’s High Court and Court of Appeal is found in the Senior Courts Act 1981 (UK) s 11(3) and for judges on the Supreme Court in the Constitutional Reform Act 2005 (UK) s 33. The subsequent curtailment of judicial tenure for life in England (and many other jurisdictions including Australia) is distinct from discussion of removal from office.

25. Shimon Shetreet and Sophie Turenne, Judges on Trial: The Independence and Accountability of the English Judiciary (Cambridge University Press, 2nd ed, 2013) 22–9.

26. Commissions and Salaries of Judges Act 1760 1 Geo III c. 23.

27. It should be noted that in the United Kingdom, protection of judicial independence from the Executive is limited to the senior judiciary at the level of the High Court of Justice and above. Since 2005, processes have existed by which the executive office of the Lord Chancellor may, with the agreement of the Lord Chief Justice, the head of the judiciary, terminate or suspend lower level judicial commissions: Constitutional Reform Act 2005 (UK) ss 108–21 and regulations made pursuant to s 115. Judicial officers at the lower court levels have been removed from the bench in this way in more recent times: see Kate Malleson, ‘Appointment, Discipline and Removal of Judges: Fundamental Reforms in the United Kingdom’ in HP Lee (ed), Judiciaries in Comparative Perspective (Cambridge University Press, 2011) 117, 128–9; Shetreet and Turenne (n 25) 286–7.

28. Opeskin, ‘Models of Judicial Tenure’ (n 17) 637.

29. Constitution Act 1934 (SA) s 74; Constitution Act 1889 (WA) s 54. The drafters of the Western Australian provision additionally felt it prudent to expressly incorporate the effect of the 1760 Act by providing that judicial tenure continued ‘notwithstanding the demise of Her Majesty (whom may God long preserve)’.

30. Constitution Act 1934 (SA) s 75; Constitution Act 1889 (WA) s 55.

31. Constitution Act 1867 (Imp) 30 & 31 Vict, c 3, s 99(1); United States Constitution art III § 1 which provides that federal judges enjoy tenure during their ‘good behaviour’, while their removal is available only to Congress through the impeachment process of art II § 4.

32. Supreme Court (Judges’ Independence) Act 1857 (Tas) s 1.

33. It is generally agreed in academic writing on the Act of Settlement itself and equivalent provisions that the stipulation of ‘good behaviour’ as a condition of judicial tenure in and of itself (as in the Western Australian and South Australian Constitutions) does not restrict the parliamentary power of removal to circumstances meeting that ground: see Decision of the Inquiry Committee: Under Subsections 63(2) and 63(3) of the Judges Act in Relation to Mr Justice F L Gratton of the Ontario Court of Justice (General Division) (Inquiry Committee Decision, February 1994) 30–1 (‘Gratton Inquiry Committee’).

34. Canadian Constitution 1867 (Imp) 30 & 31 Vic, c 3, s 99.

35. Gratton Inquiry Committee (n 33) 31.

36. Gratton v Canadian Judicial Council and Attorney-General of Canada [1994] 2 FC 769.

37. Gratton Inquiry Committee (n 33) 31, 38.

38. Ibid 31.

39. Ibid.

40. Basic Principles on the Independence of the Judiciary, GA Res 40/32 and 40/146, UN GAOR, (29 November 1985, adopted 6 September 1985).

41. Commonwealth Heads of Government, Latimer House Principles on the Accountability of and the Relationship between the Three Branches of Government (Guidelines, November 2003) 11 [IV] (‘Latimer House Principles’).

42. ‘Mount Scopus Standards of Judicial Independence 2008’ cl 5.5: Shimon Shetreet and Christopher Forsyth (eds), The Culture of Judicial Independence: Conceptual Foundations and Practical Challenges (Martinus Nijhoff Publishers, 2012) app I, 507–8. Similar clauses to those quoted in the main text are to be found across the larger suite of international standards of judicial independence.

43. Essentially, what is known as the ‘Kable doctrine’ after Kable v Director of Public Prosecutions for New South Wales (1996) 189 CLR 51.

44. See also Federal Court of Australia Act 1976 (Cth) s 6; Family Law Act 1975 (Cth) s 22; Federal Circuit Court of Australia Act 1999 (Cth) sch 1 s 9.

45. Constitution Act 1902 (NSW) s 53.

46. Constitution Act 1975 (Vic) ss 77(1), 87AAB(1).

47. Constitution of Queensland 2001 (Qld) s 61(2).

48. Judicial Commissions Act 1994 (ACT) s 5(1).

49. Supreme Court Act 1979 (NT) s 40(1).

50. Malleson (n 27) 127.

51. Mark Tushnet, ‘Judicial Selection, Removal and Discipline in the United States’ in HP Lee (ed), Judiciaries in Comparative Perspective (Cambridge University Press, 2011) 134. Tushnet said that impeachment has occurred ‘only when a federal judge has been charged with criminal misconduct’, but no charge was laid before the impeachment of Judge Thomas Porteous who was removed from office in December 2010: at 141.

52. Malleson (n 27) 127.

53. Evidence to Senate Select Committee on the Conduct of a Judge, Parliament of Australia, Canberra, 24 February 1984 (Gavan Griffith).

54. Laing (n 4) 680. See also Enid Campbell and HP Lee, The Australian Judiciary (Cambridge University Press, 2nd ed, 2013) 122–4; Thomas (n 20) 15–20.

55. Kevin O’Connor, ‘Judicial Conduct out of Court’ (2006) 8(1) Judicial Review 81.

56. Laing (n 4); Campbell and Lee (n 54).

57. For a recent precise account of each development in the ‘Murphy Affair’, see Stephen Walmsley, The Trials of Justice Murphy (LexisNexis, 2016).

58. Constitution Act 1867 (Qld) s 15.

59. Laing (n 4) 707–8: ‘The Commission reported that the following behaviour by the judge warranted his removal from office: (a) giving false evidence at a defamation hearing; (b) making and maintaining allegations that the Chief Justice, the Attorney-General and the inquiry commissioner had conspired to injure him; (c) making a false statement to an accountant who prepared income tax returns; (d) arranging sham transactions to gain income tax advantages; (e) making false claims for taxation deductions’.

60. Campbell and Lee (n 54) 123–4; Thomas (n 20) 19–20.

61. Shetreet and Turenne (n 25) 293.

62. Appleby and Le Mire (n 5) 53–4.

63. Campbell and Lee (n 54) 122. The authors go on to discuss the affair of Justice Vince Bruce, considered later in this article, as well as briefly noting later attempts to remove two New South Wales magistrates which involved claims of incapacity.

64. Appleby and Le Mire (n 5) 24, 59.

65. Shetreet and Turenne (n 25) 285–6.

66. In Cesan v The Queen (2008) 236 CLR 358, the High Court upheld an appeal against conviction on the basis that a miscarriage of justice was ‘constituted by the judge’s substantial failure to maintain the necessary supervision and control of the trial…his conduct created a distraction during the trial process’ and of the jury in particular: at 388 (French CJ).

67. Carolyn Simpson, DH Lloyd and K Moroney, Report of an Inquiry by a Conduct Division of the Judicial Commission of NSW in Relation to Magistrate Jennifer Betts (Report, 21 April 2011) (‘Conduct Division’). In the same vein as the Betts case, New South Wales Magistrate Dominique Burns has referred to mental health issues arising from workload pressures in responding to allegations of misconduct that she improperly detained defendants who appeared in court, denied procedural fairness and encouraged police prosecutors to lay further charges: see Georgina Mitchell, ‘“Did She Make Mistakes? Yes”: Hearing Adjourned to Consider Magistrate’s Fate’, Sydney Morning Herald (online), 29 November 2018 <https://www.smh.com.au/national/nsw/did-she-make-mistakes-yes-hearing-adjourned-to-consider-magistrate-s-fate-20181128-p50iwe.html>.

68. Convention on the Rights of Persons with Disabilities, opened for signature 13 December 2006, 2513 UNTS 3 (entered into force 3 May 2008) art 2 (‘CRPD’).

69. Disability Discrimination Act 1992 (Cth) s 15(2) (‘DDA’). Similar provisions are also contained in state statutes.

70. Ibid ss 5(2), 6(2).

71. Isabel Karpin and Karen O’Connell, ‘Stigmatising the “Normal”: The Legal Regulation of Behaviour as a Disability’ (2015) 38(4) University of New South Wales Law Journal 1461, 1476.

72. Anna Lawson, ‘People with Psychosocial Impairments or Conditions, Reasonable Accommodation and the Convention on the Rights of Persons with Disabilities’ (2008) 26(2) Law in Context 62, 68. See also Paul Harpur, ‘Sexism and Racism, Why Not Ableism? Calling for a Cultural Shift in the Approach to Disability Discrimination’ (2009) 34(3) Alternative Law Journal 163, 165.

73. Tom Shakespeare, ‘The Social Model of Disability’ in Lennard J Davis (ed), The Disability Studies Reader (Routledge, 2nd ed, 2006) 197.

74. Susan Gabel and Susan Peters, ‘Presage of a Paradigm Shift? Beyond the Social Model of Disability toward Resistance Theories of Disability’ (2004) 19(6) Disability & Society 585, 597.

75. Shakespeare (n 73). See further Tania Burchardt, ‘Capabilities and Disability: The Capabilities Framework and the Social Model of Disability’ (2004) 19(7) Disability & Society 735, 736.

76. Shakespeare (n 73); Burchardt (n 75) 736.

77. CRPD (n 68) art 1.

78. Gabel and Peters (n 74) 588.

79. Ibid 594.

80. However, the notion of a disability has been critiqued by Karpin and O’Connell, who question the dichotomy between disability and ‘normalcy’, arguing instead that the line between the two is blurred: Karpin and O’Connell (n 71). Indeed, what is ‘disabled’ or ‘normal’ is socially and historically constructed and contingent, and inherently unstable: at 1483.

81. Latimer House Principles (n 41) 11 (IV).

82. Jan van Zyl Smit, ‘The Appointment, Tenure and Removal of Judges under Commonwealth Principles: A Compendium and Analysis of Best Practice’ (Research Report, Bingham Centre for the Rule of Law, May 2015) 82 (emphasis added).

83. CRPD (n 68) art 2.

84. Note, however, that there is a general assumption that equipment for personal use—such as glasses, hearing aids, medication or a wheelchair—does not fall within the scope of ‘reasonable adjustments’: Australian Human Rights Commission, ‘Resource Paper: Disability Standards under the Disability Discrimination Act: Employment Issues’, Employment Standards under the Disability Discrimination Act: Resource Paper (online) [14.6] <https://www.humanrights.gov.au/publications/employment-standards-under-disability-discrimination-act-resource-paper>. Thus, employers do not need to provide equipment that is primarily for personal benefit.

85. Sharon L Harlan and Pamela M Robert, ‘The Social Construction of Disability in Organizations: Why Employers Resist Reasonable Accommodation’ (1998) 25(4) Work and Occupations 397, 398.

86. Ibid 399.

87. Lawson (n 72) 68.

88. Harlan and Robert (n 85) 427.

89. Richard V Burkhauser, JS Butler and Yang Woo Kim, ‘The Importance of Employer Accommodation on the Job Duration of Workers with Disabilities: A Hazard Model Approach’ (1995) 2(2) Labour Economics 109.

90. DDA (n 69) ss 5(2), 6(2).

91. Ibid s 21A.

92. Lawson (n 72) 69. See similarly Watts v Australian Postal Corporation (2014) 222 FCR 220.

93. DDA (n 69) s 21B.

94. Ibid s 11(1).

95. Ibid s 4.

96. CRPD (n 68) art 2.

97. DDA (n 69) s 11(1)(a).

98. The section also provides that in determining whether the ‘aggrieved person’ would be able to perform the inherent requirements of the position, regard may be had to a range of circumstances including their qualifications and previous experience and ‘any other factor that it is reasonable to take into account’: Ibid s 21A(2).

99. (1998) 193 CLR 280 (‘Christie’).

100. Industrial Relations Act 1988 (Cth) s 170DF(1)(f).

101. Christie (n 99) 284.

102. Harlan and Robert (n 85) 402 (citations omitted).

103. See generally Handsley and Lynch (n 18).

104. Australasian Institute of Judicial Administration Incorporated, Suggested Criteria for Judicial Appointments (Report, September 2015) 4–5.

105. Campbell and Lee (n 54) 126.

106. Tony Blackshield and Mark Mackrell, ‘Jacobs, Kenneth Sydney’ in Tony Blackshield, Michael Coper and George Williams (eds), Oxford Companion to the High Court of Australia (Oxford University Press, 2001) 364, 367.

107. Michael Pelly, ‘“Liberal” Kenneth Jacobs dies at 97’, The Australian (online), 5 June 2015 <https://www.theaustralian.com.au/business/legal-affairs/liberal-kenneth-jacobs-dies-at-97/news-story/beb9d79fc08d7efc06fb3cc67658d45b>.

108. Steve Butcher, ‘Justice takes Time Out for Medical Treatment’, Sydney Morning Herald (online), 3 February 2009 <https://www.smh.com.au/national/justice-takes-time-out-for-medical-treatment-20090202-7vrb.html>.

109. Michael Kirby, ‘McTiernan, Edward Aloysius’ in Tony Blackshield, Michael Coper and George Williams (eds), Oxford Companion to the High Court of Australia (Oxford University Press, 2001) 466, 469.

110. The situation in which a judicial officer is incapacitated not only from serving but also from resigning need not be addressed, although interestingly this circumstance has been the subject of attention in the United Kingdom. Section 11(8) and (9) of the Senior Courts Act 1981 (UK) empowers the Lord Chancellor to vacate the office of a senior judge in such a predicament with the concurrence of various other senior judges; this effectuates a resignation.

111. Thomas (n 20) 56. See further, Dyson Heydon, ‘Court in the Crosshairs’ The Weekend Australian (online), 29 September 2018 <https://www.theaustralian.com.au/nation/inquirer/judgment-times-courts-in-the-crosshairs/news-story/b46a19cc3941f5c004afe619772c1cbf>.

112. ‘It can be a very difficult and no doubt unpleasant task to persuade a judge that they are suffering from incapacity, such as dementia’: Heydon (n 111).

113. Harry Gibbs, ‘The Appointment and Removal of Judges’ (1987) 17(3) Federal Law Review 141, 149. See also Shetreet and Turenne (n 25) 288–9.

114. Thomas (n 20) 55.

115. There would have also been a cruel irony in doing so, since Evatt’s condition was in fact instrumental in his being appointed to the Court by the New South Wales Labor government as an inducement for him to vacate the leadership of the federal party. The state Attorney-General strongly opposed Evatt’s appointment ‘because of his mental and physical declinement’ (at 373) but eventually yielded to party pressure: John Murphy, Evatt: A Life (NewSouth Publishing, 2016) 373. Evatt’s incapacity was almost immediately evident and imposed a great burden on the judges of the court who both covered for and worked around him: at 373–8.

116. Appleby and Le Mire (n 5) 10.

117. Ibid 11.

118. Kirby (n 9) 113–14.

119. Michael Pelly, Murray Gleeson: The Smiler (Federation Press, 2014) 182.

120 Federal Court of Australia Act 1976 (Cth) s 15(1AAA)(a)(ii); Family Law Act 1975 (Cth) s 21B(1B)(a)(ii); Federal Circuit Court Act 1999 (Cth) s 12(3AA)(ii).

121. Federal Court of Australia Act 1976 (Cth) s 4; Family Law Act 1975 (Cth) s 4(1); Federal Circuit Court Act 1999 (Cth) s 5.

122. Federal Court of Australia Act 1976 (Cth) s 4; Family Law Act 1975 (Cth) s 4(1); Federal Circuit Court Act 1999 (Cth) s 5.

123. Federal Court of Australia Act 1976 (Cth) s 15(1AA)(d); Family Law Act 1975 (Cth) s 21B(1A)(d); Federal Circuit Court Act 1999 (Cth) s 12(3)(d).

124. See also Andrew Lynch, ‘Judicial Complaints and Suspension’ (2012) 23(2) Public Law Review 81.

125. Appleby and Le Mire (n 5) 32.

126. Justice Margaret Beazley, ‘Judicial Independence and Accountability: A Discordant Couplet’ (Conference Paper, Australasian Institute of Judicial Administration Annual Conference, 6–8 August 1999) 10–12.

127. Law Council of Australia, Submission No 375 to the Australian Law Reform Commission, Parliament of Australia, Review of the Federal Civil Justice System (date not specified), quoted in Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Justice System (Report No ALRC 89, 31 December 1999) 221.

128. This is not to argue that information of the kind described by the Law Council should not be made publicly available—it should, but not as a strategy by which incapacity is primarily addressed.

129. Heydon (n 111).

130. Aaron Patrick, ‘In the Federal Court, Speed of Justice Depends on the Judge’, Australian Financial Review (online), 26 October 2018 <https://www.afr.com/business/legal/in-the-federal-court-speed-of-justice-depends-on-the-judge-20181014-h16mk9>. See further, by way of response, James Allsop, ‘Courts as (Living) Institutions and Workplaces’ (2019) 93 Australian Law Journal 375 (in which the Chief Justice of the Federal Court made no direct reference to either Heydon’s article nor the ensuing media criticism of his court) and Tom Bathurst, ‘Who Judges the Judges, and How Should They Be Judged?’, 2019 Opening of Law Term Address, 30 January 2019 (in which the Chief Justice of New South Wales responded directly to the criticisms and methodology of the Australian Financial Review but presented these in isolation from Heydon’s article, despite its apparent role as a catalyst having been expressly acknowledged by the newspaper. Bathurst cited Heydon’s article once only to say (p 20): ‘Dyson Heydon has set out some cogent reasons that delay is harmful’.).

131. Appleby and Le Mire (n 5).

132. Judicial Officers Act 1986 (NSW) Pt 5, Pt 6 Div 3.

133. Ibid s 28(1)–(3).

134. Ibid s 34(1).

135. Ibid s 34(2).

136. Judicial Officers Amendment Act 2006 (NSW), Sch 1, cl 17.

137. Ibid s 39B(2).

138. Ibid s 39C(3).

139. Ibid s 39D(1).

140. Ibid s 39G(1).

141. Ibid s 39E(1).

142. Ibid s 39G(3) (emphasis added).

143. Ibid ss 39E(3), 39G(4).

144. Ibid.

145. Gibbs (n 113) 146–7.

146. Ibid 146.

147. Louis Blom-Cooper, ‘The Age of Judicial Responsibility: The Retirement and Resignation of Appellate Court Judges’ in Shimon Shetreet and Christopher Forsyth (eds), The Culture of Judicial Independence: Conceptual Foundations and Practical Challenges (Martinus Nijhoff Publishers, 2011) 339, 345.

148. Conduct Division (n 67) 53–4 (emphasis added).

149. Ibid 54.

150. Ibid 72–3.

151. Blom-Cooper (n 147) 344–5.

152. The High Court dismissed an appeal from a decision of the Queensland Court of Appeal that exclusion of a deaf person from jury service was not a breach of the state anti-discrimination law: Lyons v Queensland (2016) 259 CLR 518. In so finding, the Court focused on the issues arising from the presence of an AUSLAN interpreter in the jury room; this is not a matter that has equivalence to the use that a judicial officer may make of such an accommodation.

153. New South Wales, Parliamentary Debates, Legislative Council, 16 June 1998, 5865 (Justice Vince Bruce).

154. Ibid 5866.

155. See Campbell and Lee (n 54) 126.

156. Parliamentary Debates (n 153) 5863 (Justice Vince Bruce).

157. Rochelle Habeck and Allan H Hunt, ‘Disability Management Perspectives: Developing Accommodating Work Environments through Disability Management’ (1999) 25(1) American Rehabilitation 18, 18.

158. Ibid.

159. Harlan and Robert (n 85).

160. See especially Blackham, ‘Reconceiving Judicial Office through a Labour Law Lens’ (n 16); Blackham, ‘Judges and Retirement Ages’ (n 17).

161. That to do so remains very rare is evidenced by the publicity attracted by a speech of New South Wales District Court Judge Robyn Tupman in which she expressed concerns about the effect of workload on her colleagues and a ‘fear’ for their wellbeing, making reference to the suicide of two Victorian Magistrates over the preceding year: Angus Thompson, ‘“I Fear for My Colleagues”: Judge Warns NSW Judiciary Workload Could Have Tragic Consequences’, Sydney Morning Herald (online), 5 October 2018 <https://www.smh.com.au/national/nsw/i-fear-for-my-colleagues-judge-warns-nsw-judiciary-workload-could-have-tragic-consequences-20181004-p507tv.html>.

162. Allsop (n 130) 382.