Judicial workplace conduct policy

Contents

Culture of respect

Unacceptable workplace conduct

   Personal relationships

   Sexual harassment and other forms of harassment

   Discrimination

   Bullying

   Victimisation and retaliation

Taking action about unacceptable workplace conduct

   Who can you contact?

   When should concerns be raised or complaints made?

   What will happen when a concern is raised or complaint is made?

   Options for bystanders

Judges who are subject to a concern or complaint

How complaints will be addressed

Review of the policy

Other relevant policies

Contact points

Definitions and meaning of words used in this Policy

Culture of respect

The judges of the Court recognise their conduct must not undermine the community’s trust and confidence in their integrity, impartiality and independence.

The judges of the Court must promote a culture of respect and courtesy in their workplaces and in the performance of judicial duties.

The judges of the Court are committed to:

• providing a workplace where the Court staff and all people who perform their work in the Court are treated with respect and courtesy;
• wherever possible preventing or eliminating discrimination, sexual harassment, harassment and bullying.

Unacceptable workplace conduct

The judges of the Court accept if they engage in unacceptable workplace conduct as described in this policy towards member of the Court staff, people who perform their work in the court or another judge, they may cause harm to another person and will undermine the Court and community’s trust and confidence in the Court.

The judges of the Court accept that workplace conduct refers to a judge’s conduct in Chambers, in court and when travelling, attending official functions and social events, attending conferences or engagements in a judicial capacity.

Personal relationships

Judges recognise being in an exploitative or abusive personal relationship is incompatible with judicial office and judges should not engage in such relationships.

Save for a pre-existing relationship which has been disclosed to the Chief, Judges should be aware that forming or seeking to form sexual or intimate personal relationships with Court employees may be an exploitative personal relationship.

Sexual harassment and other forms of harassment

Judges accept that engaging in sexual harassment, other forms of harassment and discrimination is incompatible with judicial office.

Sexual harassment

Sexual harassment is any unwelcome conduct of a sexual nature in relation to a person that offends, humiliates or intimidates a person in all the circumstances. Sexual harassment may involve a one-off incident, a pattern of conduct or grooming a person over time to accede to the sexual advances or conduct.

Some conduct will be inherently unwelcome if it involves violence, abuse or a misuse of a person’s power. Just because a person does not expressly reject or object to the conduct, does not make the sexual conduct welcomed.

Harassment

Harassment is unwelcome conduct that offends, humiliates, degrades or intimidates a person because of the person’s race, sex, gender identity, LGBTIQ status, disability, age or other characteristic recognised by the Discrimination Laws.  Harassment can take many forms and may also constitute bullying.

Discrimination

For this policy, discrimination has the same meaning as used in the Discrimination Laws. Discrimination can occur in many ways. Generally, it is important to be aware of acting on stereotypes and assumptions about people based on a personal characteristic or favouring a person because of a characteristic. Discrimination can occur because of unconscious biases held about why people behaviour in a particular way.

For example, discrimination in the workplace may occur because:

• a person is treated less favourably because of a particular personal characteristic recognised by the Discrimination Laws (direct discrimination). Less favourable treatment is detrimental, unfair or adverse treatment. Treatment includes the manner in which a person is spoken to or decisions about a person’s opportunities in the workplace;
• a person is unable to comply with an unreasonable requirement or condition imposed on them in the workplace because of a characteristic recognised by the Discrimination Laws (indirect discrimination).  Indirect discrimination can arise in many ways for example:
  • if people with disability are required to access places which are physically inaccessible;
  • if people are required to stand for long periods;
  • in the timing or the duration of a court appearances for pregnant women, people with carers responsibilities, disability or religious requirements
• there has been a failure to make a reasonable adjustment for a person with a disability. For people with a disability, the failure to make adjustments to enable the person to perform their jobs, access premises or engage in the same activities as others can be discrimination. An adjustment could be changing the layout of an office or court room, providing documents in different formats; permitting the person to use equipment to enable then to access documents; to describe what is occurring in a court room for a person with a visual disability.

Bullying

Bullying is repeated unreasonable behaviours that create a risk to the health and safety of a person or group of persons.

Reasonable management action done in a reasonable manner is not bullying. This includes:

• appropriate performance management;
• providing constructive and courteous performance feedback;
• legitimate disciplinary action;
• reasonable supervisory practices;
• allocating work in accordance with the terms and conditions of employment and the Court’s organisational practices;
• giving reasonable directions;
• making a complaint about the conduct of Court employee, if the complaint is made in an appropriate and reasonable way.

Victimisation and retaliation

Victimisation and retaliation occurs if a person is subjected to any detriment because the person made an allegation or complaint about sexual harassment, harassment, bullying or discrimination.

Taking action about unacceptable workplace conduct

It is essential that all Court employees and all people who perform their work in the Court have the confidence to raise any concerns or complaints about judges and that those concerns or complaints will be properly addressed in accordance with ss 47(2)(d), 48, 144(2)(d) and 145 of the Federal Circuit and Family Court of Australia Act 2021.

The Court acknowledges that raising a concern and making complaint about a judge may be difficult because of the judge’s position, the power imbalance and fear about what may happen if a complaint is made.

The confidentiality obligations that apply to employees in a judge’s chambers do not extend to raising concerns or making a complaint about unacceptable workplace conduct by a judge.

Who can you contact?

A person who experiences unacceptable workplace conduct may raise a concern or make a complaint about a judge in writing or in person. The Court will adopt a ‘no wrong door’ policy which means that any concern or complaint will be treated seriously and addressed in a timely manner. However, the most direct way to raise a concern or make a complaint about a judge is by raising it with any one of the following persons:

• the Chief
• the Chief’s Executive Assistant
• the Chief Executive Officer of the Court
• the Deputy Principal Registrar of the Court

All concerns and complaints must be brought to the attention of the Chief at the earliest opportunity before any action can be taken in relation to a judge. If a complaint or concern relates to the Chief, it must be brought to the attention of the Deputy Chief Justice.

The Court will ensure the concern or complaint will be directed to another agency or body if it is the appropriate body.

Anonymous concerns and complaints

A person may wish to raise a concern or make a complaint anonymously. If a concern or complaint is made anonymously, there will be limitations on how a concern or complaint may be addressed. An anonymous concern or complaint will be addressed as the Chief considers appropriate, including informing how the Court approaches training and education within the Court.

Assistance for raising a concern or making a complaint

For employees of the Court, the Chief’s Executive Assistant, the employees managers, the Director of People and Culture or the Harassment Contact Officers may provide assistance about how to raise a concern or make a complaint.

When should concerns be raised or complaints made?

There is no time-limit for raising concerns or making a complaint but complainants are encouraged to take action at the earliest opportunity, if they can.

The Court acknowledges that complainants may experience trauma because of unacceptable workplace conduct and may need time to decide whether to raise a concern or make a complaint. No one will be disadvantaged if they require time before raising a concern or making a complaint.

What will happen when a concern is raised or complaint is made?

The Chief has the responsibility for deciding how a concern or complaint should be addressed and resolved. The Chief will be guided by this Policy when dealing with concerns or complaints but must act in accordance with ss 47(2)(d), 48, 144(2)(d) and 145 of the Federal Circuit and Family Court of Australia Act 2021.

The Court acknowledges that when a person raises a concern or makes a complaint they may expect:

• their concern or complaint to be taken seriously;
• to be advised what support or assistance may be available;
• to be provided with any relevant policies or procedures explaining the process for addressing their concern or complaint;
• to be listened to in a respectful manner;
• to be treated with respect and courtesy;
• to know their privacy will be respected and who will be told about their concern or complaint.

Concerns

The Chief will determine how a concern should be addressed and any action required to address a concern.

A person should have their concern acknowledged. The person should have the opportunity to discuss their concern with an appropriate person as determined by the Chief. They should expect to be told the outcome of any action taken to address the concern.

Complaints

For complaints, the complainant may expect:

• to be told how the complaint will be addressed;
• to be told who will be their principal contact person with respect to a concern or complaint;
• to be told approximately how long any process will take and what the process will involve;
• to be asked about their views in the process;
• to be offered the supports they need to properly and fairly participate in the process, as considered by the Chief;
• to be kept up-to-date throughout the process;
• their complaint to be finalised in a reasonable time;
• the process to be fair;
• to be told about the outcome of an investigation (if conducted) or action taken in response to the complaint;
• to know what will happen to any records made in the course of the investigation;
• to be offered an apology if they wish, if there is a finding a judge has engaged in unacceptable conduct;
• to be offered appropriate redress depending on the circumstances.

Options for bystanders

The Court recognises the importance of bystanders who witness or become aware of unacceptable workplace conduct. A bystander may raise a concern in accordance with this policy but cannot make a complaint on behalf of another person.

Any concern raised by a bystander will be treated seriously, noting there may be limitations in how a concern can be addressed, in circumstances where the person who may have experienced unacceptable workplace conduct does not wish to make a complaint or be involved in any investigation.

Court employees should be mindful of their responsibilities as APS employees in relation to reporting of misconduct, including harassment and other unacceptable behaviour.

Judges who are subject to a concern or complaint

For judges who are the subject of a complaint, they may expect:

• to be treated with respect and courtesy;
• to know their privacy will be respected and who will be told about their concern or complaint;
• to be told how the complaint will be addressed;
• to be told who will be their principal contact person with respect to a concern or complaint;
• to be told approximately how long any process will take and what the process will involve;
• to be offered the supports they need to properly and fairly participate in the process, as considered by the Chief;
• to be kept up-to-date throughout the process;
• the complaint to be finalised in a reasonable time;
• the process to be fair;
• to be told about the outcome of an investigation (if conducted) or action taken in response to the complaint;
• to know what will happen to any records made in the course of the investigation.

Judges are expected to cooperate with the processes as determined by the Chief to address a complaint. Judges may raise concerns about procedural fairness in relation to any investigation by notifying the Chief in writing. The Chief will consider and address any concerns at his or her discretion.

How complaints will be addressed

The Chief must deal with a complaint about another judge in accordance with ss 47(2)(d), 48, 144(2)(d) and 145 of the Federal Circuit and Family Court of Australia Act 2021. The Chief will be guided by the Judicial Complaints Procedure and this Policy with respect to how all participants will be treated in the process.

In determining how a complaint may be dealt with the Chief or a person authorised by the Chief to be a Complaint Handler must consider if one or more of the circumstances that gave rise to the complaint may, if substantiated:

• justify consideration of the removal of the judge in accordance with s 72(ii) of the Constitution;
• adversely affect, or have adversely affected, the performance of judicial or official duties by the judge; or
• have the capacity to adversely affect, or have adversely affected, the reputation of the Court.

These considerations will inform how the complaint will be handled and how the Judicial Complaints Procedure will apply. The options include:

• deal with complaint directly with the judge;
• establish a Conduct Committee to investigate the complaint and report to the Chief;
• refer the complaint to the Attorney-General.

The Chief may also dismiss a complaint.

Review of the policy

This policy will be reviewed as required and when determined by the Chief.

Other relevant policies

For all complaints – the Judicial Complaints Procedure

For employees of the Court – the Respectful Workplace Behaviour Policy

Contact points

For information about raising a concern or making a complaint, employees can contact:

• The Chief’s Executive Assistant
• Harassment Contact Officers

For well-being assistance and advice:

• the Court’s Employee Assistance Program (for Court employees)
• call 1800 RESPECT/1800 737 732

THE HONOURABLE JUSTICE WILLIAM ALSTERGREN

CHIEF JUSTICE AND CHIEF JUDGE

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DATE: 1 September 2021

Definitions and meaning of words used in this Policy

For the purpose of this policy, the following terms are defined:

Bystander means a person who witnesses or becomes aware of an incident of unacceptable workplace conduct is occurring or has occurred.

Chief means Chief Justice and Chief Judge of the Federal Circuit and Family Court of Australia

Chief’s Executive Assistant means the Executive Assistant to the Chief Justice and Chief Judge of the Federal Circuit and Family Court of Australia.

Complaint means a grievance about the workplace conduct of a judge or former judge which a person asks the Court to respond or take action to cause the conduct to stop or address the impact of the conduct on a the person who makes the complaint.

Complainant means a person who raises a concern or makes a complaint.

Complaint Handler means the Chief, a person or member of a body authorised by the Chief Justice under ss  48(2) and s 145(2) of the Federal Circuit and Family Court of Australia Act 2021.

Concern is intended to cover circumstances where a person feels uncomfortable, worried or anxious about the workplace conduct of a judge or former judge. A person may wish to draw the Chief’s attention to their concerns but do not wish to make a complaint.

Conduct Committee means a Committee established by the Chief comprised of three members which may include current or retired judges of the Court and/or a retired judges of another court. Generally, nominees will be of an equivalent or higher seniority to the judge concerned.

Court means Federal Circuit and Family Court of Australia.

Discrimination Laws mean:

• Racial Discrimination Act 1975
• Sex Discrimination Act 1984
• Australian Human Rights Commission Act 1986
• Disability Discrimination Act 1992
• Age Discrimination Act 2004
• Section 351 of the Fair Work Act 2009