By Dr Michael S King*
Principles guiding judicial conduct generally, such as those in the Guide to Judicial Conduct, are influenced by the concept of an adversarial trial. Here the judicial officer is a neutral, largely uninvolved umpire seeking to ensure the fairness of a process mainly conducted by the parties. However, judging in problem-solving courts and in Indigenous sentencing courts generally requires an involved judicial officer, some collaborative processes, and increased interaction between the judicial officer, participants, court team members and community members. Judging in these contexts is often informed by therapeutic jurisprudence principles. This article argues that, properly done, judging in these courts and applying therapeutic jurisprudence in judging in mainstream lists does not violate the judicial function or judicial values of independence, impartiality and integrity. It also argues that an ethic of care should not only underlie these newer forms of judging but also all other forms of judging. It suggests that problematic situations concerning proper judicial conduct in and out of court may be addressed through the application of these judicial values.
The full article can be accessed here: “Judging, judicial values and judicial conduct in problem-solving courts, Indigenous sentencing courts and mainstream courts” (2010) 19 JJA 133.
* Dr Michael S King, Senior Lecturer, Faculty of Law, Monash University.