Judicial ethics and applicable standards of conduct reflect core values of impartiality, independence and integrity. Conduct that is consistent with those values maintains public confidence in the courts and VCAT, and fosters community respect.

These resources provide high-level authoritative guidance on issues of conduct and ethics. They discuss how core judicial values such as impartiality, independence and integrity inform the standards of conduct expected of judicial officers.

The materials chosen for inclusion on this page were selected in collaboration with the Judicial Commission of Victoria, drawing on the knowledge of conduct and ethics issues of both organisations.

The Guide to Judicial Conduct and Judicial Ethics in Australia have both been cited in decisions by Conduct Divisions as providing content to phrases such as misbehaviour or incapacity, and are used by the Judicial Commission of Victoria to inform its assessment of appropriate standards of conduct. In addition, community standards about the proper performance of judicial duties inform the notions of misbehaviour and incapacity.

While the Guide to Judicial Conduct is an Australia-wide resource, the Judicial Commission of Victoria has issued two guidelines for Victorian judicial officers about standards of ethical and professional conduct expected of judicial officers and VCAT members.

The Guideline on Judicial Bullying defines judicial bullying as:

"Judicial bullying is conduct by a judicial officer towards an individual that:

a.    Is unreasonable
b.    Includes, but is not limited to, conduct that a reasonable person would, having regard to all the circumstances, perceive as belittling, humiliating, insulting, victimising, aggressive or intimidating.

What is unreasonable is to be assessed objectively, with regard to the following factors:

a.    The functions of the judicial officer;
b.    The subject or target of the conduct;
c.    The tone or nature of the conduct;
d.    Whether the conduct is momentary or sustained;
e.    The location, including the jurisdiction and type of proceeding (for in-court matters) in which the conduct occurs; and
f.    The overall context of the conduct."

The Guideline emphasises that robust and vigorous legal debate and adversarial exchanges are common and go to the heart of the interests of justice by ensuring relevant issues are raised and explored. When undertaken in a respectful and courteous manner, such exchanges are consistent with the standards of conduct expected of judicial officers. 

The Guideline also provides examples of judicial bullying:

•    "Any form of shouting, yelling, aggression or offensive language;
•    Ridiculing or mocking a person;
•    Making comments or criticisms that amount to a personal attack; and
•    Making gratuitous comments about the integrity or professional reputation of a legal practitioner or threatening adverse professional consequences."

Questions of judicial conduct are most acute in relation to in-court conduct. Issues include:

• appropriate interactions with lawyers, witnesses and the public, including –
  • providing procedural fairness for parties and witnesses
  • responding to unhelpful, disrespectful or wasteful lawyers
  • providing appropriate levels of assistance to self-represented litigants
• effective management of proceedings to ensure the fair and efficient use of court time
• responding to applications for disqualification on the grounds of bias.

The following resources address many of these issues. Further related resources can be found in the Judicial conduct guidelines and Key decisions on judicial conduct sections of this page.

The following cases contain some key principles regarding the scope and content of appropriate judicial conduct.

Michael v Western Australia [2007] WASCA 100 – Managing self-represented litigants

In this case, the self-represented appellant alleged a judge’s conduct throughout a 6-day trial gave rise to a reasonable apprehension of bias against him (Ground 4). The Court of Appeal considered in detail how ‘relations between the appellant and trial Judge became strained’, outlined the bounds of acceptable conduct where a party is self-represented, and analysed whether the judge’s conduct went too far.

R v Mawson [1967] VR 205 – Management of hearings

This judgment contains a succinct explanation of how a judicial officer intervening in the running of a trial can cause a miscarriage of justice. Examples exclude where the intervention deprives a party of their ability to put their case, or prevents a witness from giving their evidence, or gives rise to the appearance that the court is supporting one of the parties.

Anderson v National Australia Bank [2007] VSCA 172 – Management of hearings

In separate judgments, Maxwell P and Nettle JA both affirmed that a trial judge is entitled to intervene in questioning of a witness to clarify the evidence given and, in a civil trial without a jury, to ask probing questions which demonstrate scepticism about the evidence given. Further, the judge is entitled to constrain irrelevant or marginal examination of witnesses which serves only to prolong proceedings.

Piccolotto v The Queen [2015] VSCA 143 – Management of hearings

This appeal concerned a judge’s conduct throughout a criminal jury trial. The Court of Appeal recognised that the judge did ‘react with impatience or irritation from time to time’ (at [42]). The Court identified the different demands on a trial judge, which require balancing the need to ensure trials are conducted as efficiently as possible while ensuring the parties’ right to a fair trial.

Bodycorp Repairers Pty Ltd v Oakley Thompson & Co Pty Ltd [2018] VSCA 33 – Management of hearings and delivery of reasons

This appeal concerned an argument on apprehended bias on the part of an Associate Justice, arising from heated exchanges in the proceedings. The Court of Appeal noted that judges are permitted to display ‘irritation or impatience’ (citing Li v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 125) and are entitled to challenge counsel with perceived flaws in their submissions.

The Court of Appeal also commented on the obligation of a court to announce its decision and reasons for decision publicly. It noted that principles on this issue differ between superior and inferior courts, and that for superior courts, circulation of reasons by email, and by posting on the internet, may better achieve the aims of open justice than distribution in court. However, regardless of how reasons are distributed, important decisions should be announced in open court, after the court has given notice to the parties.

Wainohu v New South Wales (2011) 243 CLR 181 – Duty to give reasons

This case, which concerned the conferral of functions to disrupt organised crime groups on judges of the Supreme Court of New South Wales, provides a clear statement that the delivery of reasons is an ordinary incident of the judicial process, and hence an ordinary obligation of judicial officers. French CJ and Kiefel J noted, however, that while the obligation might be universal, the content of the obligation varies depending on ‘the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision’ (at [56]). Their Honours also noted that providing reasons is an expression of the open court principle.

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 – Test for apprehended bias

This decision provides the oft-quoted test for apprehended bias:

… a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide (at [6]).

It requires the party to first identify what might lead a judicial officer to decide a case other than on its legal and factual merits, and then to articulate the logical connection between that matter and the feared failure to decide the case on its merits (at [8]).

Charisteas v Charisteas (2021) 273 CLR 289 – Apprehended bias

In this proceeding, counsel for one of the parties had extensive interactions with the judge who was seized of the matter. These interactions included meeting for drinks, phone calls and countless text messages. The High Court held that the conduct gave rise to an apprehension of bias, and reiterated the principles regarding the need for judicial officers to avoid any interactions with counsel who are currently appearing before them, except with the knowledge and consent of the other party.

The Judicial Commission of Victoria publishes statements when it finalises complaints with recommendations for further action, or in cases of public interest where the complaint is dismissed.