The failure of a Victorian judicial officer to disclose a secret personal relationship with a lawyer has been found to breach basic conflict of interest, but an investigating panel said the conduct is not serious enough to sack them.
A panel of the Judicial Commission of Victoria (JCV) recommended that the judge not be kicked off the bench, despite their silence on an occasion when a lawyer they were romantically linked to appeared before them in court.
The panel found the judge’s ‘personal and intimate relationship’ with the lawyer, and subsequent omissions about it during court proceedings, amounted to a conflict of interest.
“The [judicial officer] failed to use the multiple opportunities when the prospect of an appearance arose to identify and respond to the potential issue. Instead, the officer promoted or condoned further appearances,” a statement from the JCV said.
The panel also said that when asked about the relationship and the failure to address the obvious ethical problem, the judge’s response tended to water down the significance of the conflict.
“At times the [judicial] officer diminished or equivocated about the significance of the conduct in question, characterising it as ‘undesirable’ or involving a ‘lack of prudence’,” the JCV said.
The legal advocate in the romantic duo declined to provide a statement to the JCV about the matter.
In 2020 a third-party raised concerns about the judge’s relationship with the lawyer to the JCV. The fact of the relationship between the judge and lawyer was less of an issue for the complainant than was the failure of a presiding judicial officer to excuse themselves or disclose the conflict where they were both actors in a proceeding.
A preliminary investigation by the commission board followed, concluding that the allegations, if substantiated, could justify the judge’s sacking.
But on Friday the commission issued a statement saying that the panel report which expanded its investigation into the matter deemed the conduct not to be serious enough to justify the judge’s removal from the bench.
Beyond establishing the conflict of interest, another two matters raised in the original complaint were dismissed by the panel (no details about these allegations have been published).
“Although the panel substantiated the conflict of interest matter, it concluded that it did not rise to the level of judicial misconduct warranting removal from office.
“The panel referred the matter to the relevant Head of Jurisdiction with a range of recommendations,” the statement said.
The judge’s choices reflected poor-decision making, the panel said, and they must to attend at least one counselling session to ‘explore the stressors that contributed’ to this ethics breach.
Other recommendations by the panel were for the judicial officer to participate in at least four sessions of mentoring from other nominated judges within the next two years, and a meeting with their Head of Jurisdiction for the obvious professional misstep.
Because the findings of the report have been de-identified for privacy reasons, it is unknown which jurisdiction the judicial officer sits in, and also who the Head of Jurisdiction they must consult with is.
In order to remove a Victorian judicial officer from their position, a special majority of both houses of Parliament must agree before a judicial officer can be removed. The JCV has the power to investigate serious complaints against judges in the state and, if they find a judge’s behaviour warrants removal from office on grounds of misbehaviour or incapacity, refer it to the Governor in Council.
This latest JCV finding comes after another similar issue was addressed in the High Court about the relationship between a judge and barrister involved in a family court trail. That case has prompted the Australian Law Reform Commission to undertake a review of the laws on judicial impartiality and bias.