The Judicial Commission of NSW plays a key role in the running of this state’s justice system, providing ongoing educational information to judicial officers, while investigating complaints made against them.
The commission is an independent statutory corporation established that was under the Judicial Officers Act in 1986. It was brought into being to ensure judicial independence from the state government and thereby promote the rule of law.
An Australian first
For thirty years of its existence, the body remained the only institution of its type in the country where the general public could raise concerns about the judiciary.
However, the establishment of the Judicial Commission of Victoria was announced just last month, with four members being appointed.
The Judicial Commission of NSW is comprised of the heads of each of the state’s five major courts, as well as the president of the Court of Appeal, along with several community representatives.
The president of the commission is currently Tom Bathurst, the Chief Justice of NSW. The commission reports to the NSW attorney-general, Mark Speakman SC, MP.
The sentencing database
An important function of the commission is “to achieve consistency in imposing sentences.”
Section 8 of the Judicial Officers Act empowers the commission to “monitor or assist in monitoring sentences imposed by courts” and “disseminate information and reports on sentences impose by the courts”.
With a view to achieving this objective, the commission developed an online database called the Judicial Information Research System (JIRS). JIRS is extensive online resource that contains sentencing statistics, case law, up-to-date legislation and sentencing principles.
It’s a system designed to be accessed by the state’s judicial officers, along with courts, legal practitioners and government agencies involved with the justice system.
JIRS is said to be “a world leader in the field of computerised legal databases.” It allows judicial officers to observe sentencing trends for any particular offence and take them into account when handing down sentences.
Questions over JIRS
However, a number of criminal lawyers have raised questions about the accuracy of the sentencing statistics contained on the database.
For instance, the statistics for some offences suggest that only a small number of defendants were sentenced in the relevant court for the offence during the specified time period, when the first-hand experience of lawyers is that a higher number of defendants were sentenced. And that results achieved in some cases are not reflected in the statistics at all for the specified time period.
This has raised concerns about the methodology employed by the commission to compile the statistics, how the information is collected, who’s responsible for compiling it and how those monitoring the system ensure the information is complete and accurate.
The chief executive
The daily operations of the commission are managed by the chief executive, who is supported by three directors. The current person in charge is Mr Ernest Schmatt, who has been at the helm since March 1989.
Prior to joining the commission, Mr Schmatt had quite an illustrious career. He was admitted to the Bar in 1979, and is a solicitor of both the NSW Supreme Court and the High Court of Australia. He’s also twice been elected to the executive committee of the International Organisation for Judicial Training.
Sydney Criminal Lawyers® spoke with Mr Schmatt about the Judicial Information Research System to find out just how it is run and how accurate it is.
Mr Schmatt, you’ve been the chief executive of the commission for decades now.
Can you describe the function that the commission plays in the NSW justice system?
The commission’s got three functions. The first is to provide a program of judicial education and training for the judges and magistrates of this state.
The second function is to provide sentencing information to the courts, to achieve consistency and approach to sentencing.
And the third function of the commission is to examine complaints about the ability or behaviour of judicial officers in NSW.
And the commission runs the Judicial Information Research System. An online database that provides extensive information for those working within the justice system.
How would you describe what the database does? And what its purpose is?
As part of our strategy to achieve consistency in approach to sentencing, we developed a sentencing database. And the development of that commenced as far back as 1988.
In 1996, we decided to reengineer the database to take advantage of the then emerging internet technologies. And we decided to expand the database, so that it covered all aspects of the work of judicial officers.
The name at that time was changed to the Judicial Information Research System.
But a major component of the database is still the provision of sentencing information, both statistical and legal. We have statistics on all offences dealt with in the state at all levels of courts.
We update those statistics on a regular basis.
We also have judgements of all courts relating to sentencing. And in relation to the Court of Criminal Appeal we also have summaries of those judgements, which are prepared by legal officers here at the commission.
In addition to that, we also have legislation – so all relevant legislation is included in the database.
Now the case law is updated on a daily basis, as we receive judgements from the higher courts. And the legislation is updated on a weekly basis.
So it’s always very current information.
So this database contains changes to the criminal law. Is JIRS the main source, where judicial officers learn about developments in the law and practice?
Yes, I would certainly say that’s the case.
If you were to log onto JIRS, the first screen not only includes a list of the information that’s available from the database. But it also has a screen that keeps people up-to-date on developments in the law as they are occurring at all levels.
For example, we monitor the judgements of the High Court of Australia and the Court of Criminal Appeal, here in NSW. We make announcements as to important cases and we provide information relevant to those.
We also track relevant legislation as it’s moving through the parliament and keep judicial officers up-to-date with that information.
And the system stores sentencing statistics, which provide a pattern of sentences being imposed by the courts for criminal offences.
How do you go about compiling these statistics?
The information is collected direct from the courts. It’s collected by the Bureau of Crime Statistics and Research. There are certain validation checks done by the bureau.
The information is then sent electronically to the commission. We do some further auditing and validation checking of the information. And any corrections are made to the statistical information.
It is then loaded onto the database.
Do you also receive some of the information from the Director of Public Prosecutions?
We do have a small component within the database, which includes certain information from the DPP. But it’s not the statistical information.
How are these statistics actually used? Would say a trial judge look at the patterns reflected in the statistics, and take them into account when they’re sentencing a person for a particular offence?
The whole idea is to provide judicial officers with information relevant to their decision making. It’s provided in such a way as to not interfere with judicial discretion, so that the final decision still has to be made by the judge or magistrate.
But the advantage of using the database is that they are provided with a lot of information relevant to that function of making a determination on what is an appropriate sentence.
And it’s what has been described as “the collective wisdom of the court.” So that judicial officers know what sentences are being imposed in similar circumstances by all other judicial officers.
But there are a few lawyers, who’ve raised concerns that only some of the cases that they’ve been involved in seem to be recorded on the database and not all of them have.
How do you ensure that the information in the database is complete?
I’m not sure what those lawyers were referring to. But as far as the statistical information, all cases that have been decided by the courts are included in that component of the database.
As to first instance decisions, the actual judgement in many first instance decisions are not there.
The decisions of the Court of Criminal Appeal have value as they can change the law. That’s why they’re included. It’s very important.
Whereas, many of the first instance judgements don’t in anyway change the law.
So to answer your question, I’d really need to know a bit more about what type of judgements these lawyers were referring to. Otherwise, I can’t give you an accurate answer.
They’ve raised concerns that possibly judges are referencing incomplete material in this database.
I would disagree with that. It’s the most comprehensive database of its type, as far as I’m aware, anywhere in the world.
In a report to the English parliament in 2001, it was described as the most sophisticated and least intrusive judicial support system anywhere. Which was quite a compliment to the work of the commission.
And I should also stress Paul that all the technical development of this database and the maintenance of the database is done entirely in-house by staff of the commission.
I was going to ask. You said the information is regularly updated. Do you have a team of people working on it?
We have lawyers working here, who read the cases when they’re handed down. They prepare summaries of those cases and the relevant and important ones are then included in the database. Those that have some precedent value.
Now that happens usually within 24 to 48 hours of the judgement being given. So that gives you some idea of the currency of the database.
With legislation, again, we check the currency of each piece of legislation on a weekly basis and then verify that it is current as at a particular date, usually on a Friday.
And lastly, besides looking after the database, what other functions does your role as chief executive of the Judicial Commission of NSW entail?
Well I’m responsible for the day-to-day operations of the commission. And responsible for all of its operation as the chief executive.
And I answer directly to the Judicial Commission, which is ten members, or actually nine at the present time.
Mr Schmatt thanks very much for taking the time out to speak with us today. And for letting us know a bit more about the functioning of this quite influential database.
Paul Gregoire is a Sydney-based journalist and writer. He has a focus on human rights issues, encroachments on civil liberties, drug law reform, gender diversity and First Nations rights. Prior to Sydney Criminal Lawyers®, he wrote for VICE and was the news editor at Sydney’s City Hub.