SA Equal Opportunity Commissioner calls for overhaul of judicial appointment process to combat bullying and discrimination

One in every five cases of bullying in SA’s courts is perpetrated by the judge, a review says – but they can evade accountability and consequence by quitting.

Judges perpetrate more than 20 per cent of the bullying occurring in the state’s courts but can evade accountability just by quitting, a report has found.

The Equal Opportunity Commission has called for an overhaul of SA’s judicial and magistrate appointment process, calling it “one of the least transparent” in the nation.

Its review of the legal profession says judicial officers perpetrated 22 per cent of bullying, 14 per cent of discrimination and 9 per cent of sexual harassment reported between 2021 and 2023.

Some, it says, use judicial independence as a “protective shield” to repel accountability and “enable” inappropriate behaviour toward their own staff and to lawyers.

Others are “role-modelling belligerent, rude, and demeaning” behaviour for the next generation of practitioners, preventing meaningful change.

SA’s judicial officers perpetrated more than 20 per cent of bullying reported to the Equal Opportunity Commission, a review says.

It says there are “no enforceable guidelines for judicial behaviour” with some victims dismissing counselling as a “fireside chat” without consequences.

Though judges can be investigated, state law says complaints “must be mandatorily dismissed” if they “cease to be a judicial officer” – and cannot be reactivated if they return to practice.

In the review, victims say they have experienced “shouting, yelling” and “bullying techniques” employed by judges including “attempts to humiliate” lawyers.

“There remains entrenched views that the courtroom is not subject to the usual expectations of behaviour in a workplace,” they told the review.

“Bullying is tolerated culturally as part of the rough and tumble of legal proceedings … there is no accountability nor consequences for bullying behaviour of judicial officers.

“Keep appointing magistrates and judges who are bullies and they will keep bullying people … the toxicity comes from the top.”

Equal Opportunity Commissioner Jodeen Carney’s latest review found “harassment in all forms persists” in the profession, despite a damning 2021 inquiry.

That inquiry accused a serving judicial officer of sexual harassment – Magistrate Simon Milazzo was subsequently fired by parliament.

Equal Opportunity Commissioner Jodeen Carney.

In the review, Ms Carney said judicial appointments were for life and could only be ended by “the nuclear option” of parliamentary intervention.

She said judicial candidates should be vetted by an independent assessment panel and complete harassment awareness training before appointment.

State law must change, she said, so that misconduct investigations continue regardless of a judge or magistrate’s resignation.

“The incentive to resign spares the judicial officer from being subjected to inquiry and precludes a formal acknowledgment of wrongdoing,” she said.

“This reduces judicial accountability and for some victims, represents an unfair and unjust

outcome.”

In a statement, the chiefs of SA’s courts vowed to hold perpetrators to account.

“We accept the force of the Commissioner’s recommendations that procedures be implemented to ensure that the character of applicants for judicial office are more closely vetted,” they said.