The Federal Circuit Court of Australia last year received two complaints against a Judge of the Court. One complaint was received in July from a Court employee and one complaint was received in September from a former law student.
Upon receiving the first complaint, I appointed an independent Conduct Committee to investigate the allegations and provide appropriate recommendations. The Conduct Committee was constituted by three former judges of the Supreme Court of Victoria, one of whom had also been a judge of the Federal Court of Australia, namely the Hon Julie Dodds-Streeton QC (Chair), the Hon David Habersberger QC and the Hon Katharine Williams QC. An expert industrial law barrister, Ms Tessa Duthie, was also appointed as counsel assisting.
Upon receiving the second complaint, I considered that it too warranted investigation.
The Judge has been on leave since the commencement of the investigation in August 2020. His duties and responsibilities have been allocated to other judges and registrars.
Each of the complainants and the Judge were offered legal representation of their choice, counselling and other support by the Court.
Following a thorough investigation, the Conduct Committee delivered a confidential report on 1 April 2021 which was provided to the Judge and the two complainants.
The Committee’s investigation found that, in each case, the complainant’s allegations were substantiated and that the Judge had engaged in conduct towards each complainant that was sexualised in nature and otherwise inappropriate. The conduct the subject of the complaints, principally, involved inappropriate communication that occurred in 2015, 2016, 2019 and 2020. One complaint also involved two unwelcome hugs.
The Committee found that neither the Judge’s medical condition nor his workload could justify or excuse his inappropriate conduct towards either of the complainants.
The Committee recommended that:
- The complaints be referred to the Attorney-General for her consideration as to whether the procedures set out in the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012 (Cth) should be initiated.
- The Chief Judge take appropriate steps on behalf of the Court to acknowledge, apologise to, counsel and assist the complainants.
- A public statement be released disclosing the fact of, and the outcome of, the investigation of the complaints made against the Judge.
- The Chief Judge take steps to ascertain, by appropriate means, whether any other persons may have been the subject of inappropriate conduct by the Judge.
- The Court’s Judicial Complaints Procedure and any related rules or protocols be reviewed and revised.
After receiving the Report, the Judge provided further medical evidence and submissions. The Conduct Committee was required to consider this additional material. On 17 June 2021, the Conduct Committee confirmed that notwithstanding the additional material it would not be altering its findings or recommendations.
The complainants and Judge were notified that I would be handing down my determination in relation to the Conduct Committee’s findings and recommendations on 1 July 2021.
On 30 June 2021, the Judge resigned his commission of office, effective 7 July 2021.
On 1 July 2021, I delivered my determination to the complainants and the Judge. I consider that the findings of the Conduct Committee are appropriate and I have adopted the recommendations made.
The Judge’s conduct is of great concern to the Court as is the harm caused to these young women. The Court is ashamed that such conduct could occur especially by someone of such standing and responsibility as a serving Judge and in circumstances where he held a position of trust in respect to each of the complainants.
The behaviour was totally unacceptable and inexcusable.
Accordingly, the Court has taken the following steps.
I have personally met with each of the complainants and, on behalf of the Court, I have apologised, unreservedly, to them for the Judge’s conduct. I have also acknowledged in writing the significant impact the Judge’s conduct has had on them. They should never have been subjected to this behaviour. I have thanked them for their courage and fortitude in coming forward to make a complaint. Further, I have indicated that the Court will continue to provide ongoing support to them. I have also sought their suggestions as to how the Court could improve its judicial complaints process and its working environment. The Court greatly appreciates their suggestions.
Notwithstanding the Judge’s resignation, a copy of the determination and the Conduct Committee Report has been sent to the Commonwealth Attorney-General for her information.
A further investigation is being undertaken to ascertain whether any other persons may have been the subject of inappropriate conduct by the Judge. The Court has engaged workplace specialist lawyer, Mr Stephen Price of Corrs Chambers Westgarth, to undertake this investigation. Its results will be considered when received and, if appropriate, referred to the Conduct Committee for its consideration and any further recommendations. An additional report will be provided to the Attorney-General once that investigation is concluded.
The Court has already implemented improvements to its judicial conduct procedures and is continuing to do so. They include:
- In June 2020, a joint Committee of Judges of the Family Court of Australia and the Federal Circuit Court of Australia (chaired by Judge Chris Kendall) and independent counsel were engaged to review the Courts’ judicial complaints procedures. That Committee made a number of recommendations that are currently being implemented with the assistance of Kate Eastman AM SC. Notably, the Court has now finalised and released its updated Judicial Workplace Conduct Policy and Judicial Complaints Procedure. These documents have been distributed to all Judges and staff of the Court and are available on the Court’s website. The documents reaffirm the Court’s zero-tolerance approach to unacceptable workplace conduct by Judges of any kind, be it sexual harassment, harassment, discrimination, bullying or victimisation and make clear the steps a person working in the Court may take to raise any concerns or complaints.
- In March 2021, the Court engaged the services of world-leading sexual harassment expert Professor Catharine A MacKinnon, who made a formal presentation to Judges on judicial misconduct in April 2021. These presentations will continue. The Court will also continue to liaise with Professor Mackinnon to review and, if necessary, further improve its processes.
The Court will continue to take all steps necessary to ensure that the experiences of the complainants are not repeated. Harassment of any kind will not be tolerated. The Court is committed to ensuring a safe and respectful workplace for all of its employees and maintaining a zero-tolerance policy to any misconduct of its judicial officers.
The Court encourages anyone who has been subjected to inappropriate behaviour to come forward and make a complaint. They will be fully supported. The Court will continue to do all it can to ensure that inappropriate conduct does not occur.