committee (WHS Committee) composed of partners, management, lawyers at different levels, and secretarial and administrative staff. The committee should meet regularly to consider safety in the firm, make recommendations to the partners and consult widely within the firm;

• in conjunction with the WHS Committee, the firm should sign up to and audit itself against the TJMF Guidelines and identify any gaps. The audit would include a staff survey to identify hazards, a review of existing policies including safety, bullying, discrimination, flexible work conditions and grievances, and an assessment of existing training and education. Compliance with the OHS Act should also be audited.

In addition, the firm should:• identify any required changes to systems, processes, policies,

training and review mechanisms;• ensure that partners and senior management are made aware

of, and accept, their obligations and the need for any change;• to the extent that change is required, consult with its

employees on the rationale for, and the extent of, the changes. Any feedback should be taken into account;

• implement any required changes;• undertake an ongoing risk management approach, involving

the identification of hazards, a risk analysis of those hazards and steps to eliminate the hazards, as far as is reasonably practicable, and, if that is not reasonably practicable, to reduce those risks so far as is reasonably practicable; and

• review the implementation of changes and compliance with the OHS Act at regular intervals.

ConclusionThis memo outlines the legal obligations of Hope & Associates for the health and safety of its employees under the OHS Act.

Furthermore, there are potentially non-legal benefits in improving health and safety in a workplace, including higher job satisfaction, higher retention, higher productivity, fewer absent days, and reduced injury and illness rates. These outcomes reduce costs and increase revenue, with an overall expected increase in profit. A non-discriminatory workforce should also promote a diverse workforce, maximising the range of available knowledge, skills and abilities.

The case for a safe workforce is compelling.Amy Truefields 2015 n

Chris Molnar is a partner at McKean Park and an LIV workplace relations accredited specialist.

1. Disability Discrimination Act 1992 (Cth), Equal Opportunity Act 2010 (Vic).2. “Workplace Stress in Victoria: developing a systems approach”, Report to the Victorian Health Promotion Foundation, May 2006; “Mental Health and the Legal Profession: A Preventative Strategy, Final Report”, LIV, 11 September 2014; “Officewise – A guide to health & safety in the office”, Worksafe Victoria, January 2006, “Preventing work-related stress”, Worksafe Victoria, June 2009; “Reducing stress in the workplace”, VicHealth, March 2012; “Tristan Jepson Memorial Foundation Psychological Wellbeing: Best Practice Guidelines for the Legal Profession”, Tristan Jepson Memorial Foundation; www.headsup.org.au.3. “Workplace Stress in Victoria, Developing a systems approach”, Report to the Victorian Health Promotion Foundation, May 2006; p21.4. Note 3 above.5. Note 3 above.6. Note 3 above.7. Note 3 above. “Preventing work-related stress”, Worksafe Victoria, June 2009; “Reducing stress in the workplace”.

Judging stressGiven the impact of judicial decisions on people’s lives, courts have a duty to consider and promote judicial wellbeing. by carly schrever

Former judge of the High Court, Michael Kirby, was the first Australian judicial officer to speak publicly about the idea of judicial stress calling it “an unmentionable topic” and pointing to the “traditionally stress denying” culture of the judiciary.1 Indeed, in 1997, a number of his fellow judges vehemently condemned his drawing attention to the issue, with one superior court judge accusing him of “jumping on the stress band wagon”, which was likely to “release howls of derision” from the public and the profession, and saying that “judges need adrenaline or pressure to produce their best work”.2 After responding to these comments, Justice Kirby, and the Australian judiciary generally, remained silent on the topic for the next 15 years.

The reluctance of judges and the courts to discuss judicial stress is understandable. Judicial office is a privileged position, and the complaints of the privileged are not typically met with great public sympathy. More than this, the judicial function imposes superhuman expectations on judicial officers to represent perfect wisdom, temperance and insight, and restore justice and truth to complex and broken human circumstances. It is perhaps unthinkable that those who stand in judgment on others might themselves be human, and subject to human vulnerabilities. In their concern to preserve public confidence in the courts, judges may not have felt free to explore the psychological impact of judicial work. ➜

tSNAPSHOT

• Judicial officers are uniquely placed at the crossfire of risk factors for work-related stress, and their wellbeing is an important community concern.

• Judicial stress is under-researched, meaning that very little is known about the nature, prevalence, severity and sources of judicial officers’ work-related stress.

• The Judicial College of Victoria, in conjunction with Victorian courts, is undertaking four important initiatives to support judicial wellbeing.

29SEPTEMBER 2015 LAW INSTITUTE JOURNAL

mental health special issueJudiciary

Perhaps, for this reason, the mental wellbeing of judicial officers has received virtually no scholastic or policy attention despite the large and growing body of research revealing the alarmingly high rates of anxiety and depression among lawyers and law students – both in Australia and overseas.3 As this empirical evidence accumulates and public awareness of mental health concerns increases, judges face a new dilemma – they must be seen to be in control while also dealing proactively with the vital issue of their own mental health.4

What we knowAlthough judicial stress has not been directly researched in Australia, there are a few things that we know.

First, judges are not immune to the impacts of stress. Recently, some Australian judicial officers, most notably Justice Shane Marshall of the Federal Court, have spoken publicly about their experiences of stress and mental illness.5 The sharing of personal stories has been considerably more common among American judges, where a rich body of anecdotal material on the judicial experience is now on public record. This has motivated empirical studies involving the US courts, which have collectively suggested that judges do indeed experience elevated stress. In those instances, it has been characterised as burnout or vicarious trauma.6

Second, judicial officers are senior members of a stress-prone profession. Research on the legal profession has indicated that stress, burnout and mental illness are higher among lawyers and law students than their counterparts in other professions. In a landmark study entitled “Courting the Blues”, which surveyed more than 1500 Australian law students, solicitors and barristers, the Brain & Mind Research Institute reported 35 per cent of law students, 31 per cent of solicitors and 17 per cent of barristers recorded elevated levels of psychological distress,

compared with 15 per cent of medical students, and 13 per cent of the general population.7 Similar results have been reported in many subsequent Australian studies8 indicating a genuine relationship between legal work and psychological distress. Further, research into other professions (medicine, teaching, academia, and business) has shown that certain work-related stress (especially burnout and secondary trauma) can increase with professional seniority.9

Third, many aspects of judicial work are inherently stressful. Some papers, mostly written by American judges and judicial educators, have attempted to delineate the peculiar aspects of judicial work that are likely to give rise to stress.10 The suggestions of these papers are summarised in Figure 1 (opposite) and constellate into three broad categories: stressors of work load; stressors of work type; and stressors of work culture. Even at face value, these elements represent a highly stressful combination, and in most instances there is solid empirical evidence linking them to elevated stress. For example, a vast body of psychological research has placed beyond doubt that social isolation is both subjectively and physiologically stress-inducing.11 Also, repeated exposure to traumatic material is well known to lead to occupational stress, in the form of secondary traumatisation.12

Finally, we know that judicial stress is problematic, and not just for the judicial officer. Naturally, stress impacts upon the physical and psychological health of the person experiencing it. But judicial stress also has the capacity to negatively affect the broader community. Judicial decisions have enormous impact on people’s lives, and stress is well known to affect the quality of decision-making. When under stress or “cognitive depletion”, decision makers rely more heavily on intuitive decision-making systems and mental heuristics, rather than rational systems, which can lead CA

ROLY

N R

IDSA

LE

30 LAW INSTITUTE JOURNAL SEPTEMBER 2015

to more biased, stereotypical and conservative decisions.13 Compromised decision-making can, of course, also lead to inappropriate behaviour. Sprinkled throughout history are a number of high-profile cases which Michael Kirby referred to as “judicial crack-ups” including instances of mental breakdown, aggressive courtroom manner, and even criminal behaviour.14 Kirby suggested that often these were due, at least in part, to chronic work-related stress.

What we don’t knowDespite its importance, judicial stress is under-researched, especially in Australia. An impressive series of studies by two South Australian researchers on judicial workload and job satisfaction represents the only social-scientific work on the Australian judicial experience to date, but does not directly address work-related stress.15 Much of the international literature is anecdotal or theoretical, with at least 10 empirical studies published worldwide – and most are small scale and jurisdiction-specific.16 Given that laws, practices and culture vary so much from jurisdiction to jurisdiction, it is questionable how useful international studies are to the Australian judicial context in any case.

While the available literature enables us to hypothesise and make some educated guesses, we know virtually nothing about the nature, prevalence, severity and causes of judicial stress in Australia. Is judicial stress best characterised as vicarious trauma, burnout, decision-making fatigue or some other construct? Is it most commonly experienced shortly after appointment, or towards the end of one’s career? How does it compare with the stress experienced at other levels of the profession? Is it getting worse as laws get more complex? Is it more prevalent during certain kinds of trials? What are the factors that exacerbate and ameliorate its impact? Is it even a significant enough problem to warrant intervention? We do not currently know. In short, what we did not know about lawyer and law student stress a decade ago, we still do not know about judicial stress now.

The combined implication of all that we do and do not know about judicial stress is significant: as senior members of a stress-prone profession, managing workloads bordering on the oppressive in the context of professional isolation, intense scrutiny, and often highly traumatic material, there is good reason to expect that judicial officers are at particular risk of work-related stress. Conversely, there is also good reason to suppose that judges are better placed than most to manage the extraordinary stresses of the job: they are the highly successful few who have survived the uncommon pressures of a legal career, and risen to the pinnacle of the profession.

STRESSORS OF WORK LOAD

t

• Increasingly high caseload

• More documents • More statutes • Lengthier case law • No designated time for writing judgments

• Extra duties of office • No opportunity to delegate

WORK TYPE

t

• Adversarial system – conflict and disagreement

• Highly emotional and tense

• Managing mental illness of court users

• Self-represented litigants

• Traumatic material • Making decisions that significantly impact on people’s lives

WORK CULTURE

t

• Isolation • Media and appellate court scrutiny

• Public forum • No feedback • No management • Culture of denying stress

• Expression of emotion and opinion constrained by the appropriateness of office

Figure 1: Sources of judicial stress, drawn from Australian and American commentary, grouped into stressors of work load, work type, and work culture.

Perhaps judicial officers represent an elite minority for whom legal work is uniquely suited. Either way, without empirical research we do not know. Given the impact of judicial decisions on people’s lives, and the pivotal role the judiciary plays in our democratic system, courts arguably have a duty, not only to individual judges, but the community more generally, to consider and promote judicial wellbeing.

What we are doingThe Judicial College of Victoria is an independent statutory authority, providing education and professional support to Victorian judges, magistrates and VCAT members.17 Despite the limited research conducted in Australia, the college is acknowledged as a world leader among judicial educators in developing programs and resources to promote judicial wellbeing. Beginning with the flagship “Court Craft: 360 Degree Feedback Program”, which addressed the fundamental psychological need for honest and constructive feedback, and continuing with programs on judicial leadership, mindfulness, stress and resilience, the college has long recognised its role in supporting judicial officers to meet the uncommon pressures and complications of judicial work.

In 2015, the college, in conjunction with the Victorian courts – in particular the County Court, has developed the nation’s first comprehensive Judicial Wellbeing Program. Drawing on the expertise of highly experienced psychologists and psychological researchers, the program includes four initiatives each responding to a different identified need:

Empirical research: The college and the courts have collaborated with a clinical psychology researcher (and author of this article) to investigate the factors that promote and undermine wellbeing in the judicial environment, and to identify evidence-based interventions that could be implemented within Australian courts to support judicial officers’ psychological health. The research commenced in February 2015 and will be thorough and extensive, with results expected to be published in 2017.

Education and training: The college engaged an experienced clinical psychologist and former lawyer to develop an intensive two-day judicial wellbeing workshop, incorporating the latest research from clinical and positive psychology on topics such as vicarious trauma, burnout, and the treatment of anxious and depressive symptoms. The program was rolled out in August 2015.

Online wellbeing resources: The college is currently building the nation’s first dedicated judicial wellbeing website which will provide

31SEPTEMBER 2015 LAW INSTITUTE JOURNAL

mental health special issueJudiciary

your career

LIV Accredited Specialisation

MAKE YOUR MARK IN 2016“Achieving specialist accreditation gave great definition to my career, enabling key progressions and more confident use of my developed skills.”Daniel Kelliher, LIV Wills & Estates Accredited Specialist,

Russell Kennedy Lawyers

Register your interest now to specialise in 2016:

• Business• Commercial Litigation• Children’s

• Criminal• Environment & Planning• Immigration

• Mediation• Wills & Estates• Workplace Relations

W: www.liv.asn.au T: 03 9607 9461 E: special@liv.asn.au

discrete access to a carefully curated and indexed repository of local and international resources relevant to the social and psychological wellbeing of judicial officers. The website will be officially launched in early 2016.

Psychotherapeutic support: The college is supporting the County Court to develop and evaluate the Supporting Judicial Resilience Program – a 6-month pilot exploring the benefits of professional debriefing and resilience counselling for judicial officers (see the article by her Honour Judge Felicity Hampel on p33).

ConclusionJudicial officers, by virtue of their position within a stress-prone legal profession, and the nature of judicial work, are uniquely placed in the crossfire of risk factors for stress. Given the impact of their decisions, and the pivotal role they play in our democratic system, judicial officers’ wellbeing is more than a personal concern. And yet, we know very little about the work-related stress experienced by the Australian judiciary.

This poses a challenge for courts seeking to address judicial stress and promote judicial wellbeing. Rising to the challenge, the College, in conjunction with Victorian courts, has developed a suite of initiatives, aimed at building an evidence base for appropriate judicial support. n

Carly Schrever is a lawyer, provisional clinical psychologist, researcher of judicial wellbeing at the University of Melbourne, and the judicial wellbeing project adviser at the Judicial College of Victoria.

1. M Kirby, “Judicial stress”, Australian Bar Review, 1, 1995.2. JB Thomas, (1997),), “Get up off the ground: A commentary on the Hon Kirby J’s ‘Judicial stress: An update’, Australian Law Journal 71,(1997, pp1-2.3. Eg N Kelk, G Luscombe, S Medlow & I Hickie, “Courting the blues: Attitudes towards depression in Australian law students and legal practitioners”, Brain & Mind Research Institute: University of Sydney, 2009; MK Miller, and BH Bornstein. Stress, trauma and wellbeing in the legal system, Oxford University Press, New York, 2013.4. J Gibson, The judiciary too fearful to admit its battles with depression, Sydney Morning Herald www.smh.com.au/lifestyle/diet-and-fitness/the-judiciary-too-fearful-to-admit-its-battles-with-depression-20090923-g2pj.html, 24 September 2009.5. S Marshall, “Depression: An issue in the study of law”, paper presented at the Wellness Network for Law Symposium, Canberra, 5-6 February 2015.6. Eg DM Flores et al, “Judges’ perspectives on stress and safety in the courtroom: An exploratory study,” Court Review, 45, 2008.

7. See Kelk et al, note 3 above.8. J Chan, S Poynton & J Bruce,“Lawyering stress and work culture: An Australian study”, in LSJ, 37(3) 2014.9. Eg L Worrall and C Cooper, “Executive stress in different industrial sectors, structures and sizes of business”, Personnel Review, 24(7), 1995.10. Eg M Miller and J Richardson, ”A model of causes and effects of judicial stress”, Judge’s Journal, 45(2) 2006; G O’Brien, “Confessions of an angry judge”, Judicature, 87(5), 2004, pp251-254.11. L Dahlberg, and K McKee, “Correlates of social and emotional loneliness in older people: Evidence from an English community study”. Ageing and Mental Health, 18(4) 2014.12. K Shanti and H Bell, Trauma and the organization: Understanding and addressing burnout and secondary trauma in a trauma-informed system. In B Doolittle, Psychology of burnout: New research, Hauppauge, NY, US: Nova Science Publishers, 2013, pp59-70.13. O Svenson and A Maule (eds), Time pressure and stress in human judgment and decision making, Springer: United States, 1993.14. M Kirby, “Judicial stress: An update”, Australian Law Journal, 71, 1997.15. Eg K Mack and S Roach-Anleu, “The National Survey of Australian Judges: An overview of finding” Journal of Judicial Administration, 18(5) 2008.16. J Chamberlain, and JT Richardson, Judicial stress: A topic in need of research. In Miller & Bornstein (eds.), Stress, trauma and wellbeing in the legal system, New York: Oxford University Press, 2013.17. www.judicialcollege.vic.edu.au.

32 LAW INSTITUTE JOURNAL SEPTEMBER 2015

mental health special issueJudiciary