Home Opinion/Commentary Like being ‘slapped’ or ‘kicked’: judicial bullying is a problem in Australian courtrooms

Like being ‘slapped’ or ‘kicked’: judicial bullying is a problem in Australian courtrooms

by The Conversation
By Ray Nickson, University of Newcastle and Alice Neikirk, University of Newcastle

Bullying by judges, magistrates and other judicial officers is a factor in many lawyers leaving the profession.

This month is the first anniversary of the Judicial Commission of Victoria’s conduct guideline about judicial bullying. Yet, as shown in our latest research published this week, judicial bullying remains an issue across all states in Australia.

Judicial bullying is conduct by judges and magistrates that is unreasonable in the circumstances and belittles, humiliates, insults, victimises, is aggressive or intimidating.

In 2023, lawyers across Australia shared in interviews that judicial bullying was a significant contributor to workplace stress. They remarked that it wasn’t clients or the law that might ruin their day – more often it was courtroom encounters with judges and magistrates.

Lawyers often likened this to getting “slapped” or “kicked”. As one lawyer told us,

I’ve seen lawyers leave […] and not gone back to work in criminal law because of what they’ve experienced, and the pressures and the judges and their comments.

Breaking the taboo

Interactions between lawyers and judges or magistrates typically represent an entirely one-sided power dynamic. In courtrooms, judicial officers have all the power, while lawyers and others have limited or no power to challenge bullying behaviour.

Bullying by judicial officers contributes to stress, depression, and burnout for lawyers. So far, Victoria is the only Australian jurisdiction to take formal steps to reduce judicial bullying.

Within the legal profession, judicial bullying has long been a taboo subject. It has traditionally been viewed as a rite of passage for lawyers. Some judges have taken the view that concerns about judicial bullying reflect that lawyers have become too fragile.

Judicial bullying not only affects lawyers but can diminish the health and wellbeing of other court staff and participants. It undermines the integrity of the justice system by giving the impression that judicial officers are biased. Bullying in the courtroom demonstrates a lack of professionalism that may negatively influence the behaviour of others in court.

Surveys of Australian legal practitioners show that judicial bullying is common. For example, 59% of Victorian barristers reported they experienced judicial bullying. That same study found that women barristers experienced judicial bullying more frequently: 66% compared to 55% of male barristers. In our own research, many lawyers observed a gendered dimension to the issue.

Former High Court justice Michael Kirby has acknowledged the issue of judicial bullying. Most judges and magistrates do not bully from the bench. As one lawyer told us “Judicial bullying has definitely gotten a lot better. Thirteen years ago, judicial bullying was the biggest problem.”

Justice Kirby has stated “there are a few serial judicial offenders in the judiciary, who are widely known in the legal profession.”

Judicial bullying is a cause of depression in lawyers. While barristers have reported high levels of job satisfaction overall, judicial bullying was observed as the most significant issue affecting their working life.

Combatting judicial bullying

The Judicial Commission of Victoria has taken steps to combat judicial bullying. They noted that a cultural change in courtrooms was required to develop safer, healthier, and more respectful workplaces. A lack of strong leadership on the issue has been observed as a challenge. There is also a lack of awareness among judicial officers about the effects of judicial bullying, and bad systems for reporting bullying.

Official responses to reduce bullying can include permitting anonymous complaints, allowing witnesses to make reports, and improving complaint processes. Last year, the Legal Practice Board in Western Australia created an online portal that would allow for anonymous complaints of judicial bullying.

Beyond institutional responses, there are measures lawyers can actively take to reduce the risk and impact of judicial bullying. Supervisors shared with us that management of caseloads for junior lawyers can reduce the risk of judicial bullying. Informal debriefing between colleagues, such as office conversations, chats walking to court, and during social gatherings, were the most important ways lawyers coped with workplace stress, including judicial bullying.

It is important to recognise that many lawyers represent vulnerable members of our community in court. This includes victims of domestic and family violence, Aboriginal and Torres Strait Islander clients, youth, people with disabilities, and people in custody. The professional expertise of these lawyers is an important legal and social resource in Australia. Steps should be taken to protect this resource from unhealthy working environments, which can include bullying inside and outside the courtroom.

Judicial bullying may itself be caused by professional stress. Ensuring that judicial workloads are manageable is another important feature of reducing the risk for judicial bullying. Judges and magistrates work in high-stress roles and must be provided with the resources and supports to lead healthy professional lives.

The legal profession continues to grapple with the challenges presented by bullying in the workplace. It is important to acknowledge the impact that a minority of judges and magistrates can have on lawyers. Victoria’s response in formally acknowledging the issue of judicial bullying is a positive step that should be adopted throughout Australia.

Ray Nickson, Senior Lecturer in Criminology, Newcastle Law School, University of Newcastle and Alice Neikirk, Program Convenor, Criminology, University of Newcastle

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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