Thursday, 28 June 2012
Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012, Courts Legislation Amendment (Judicial Complaints) Bill 2012; Second Reading
This is a suite of bills to provide a formal basis for the discipline and constitutional removal of judicial officers. At present the only formal legislation dealing with judicial complaints is found in section 72 of the Constitution, which provides for removal by the Governor-General in Council 'on an address from both Houses of Parliament … praying for such removal on the grounds of proved misbehaviour or incapacity'. It has been invoked only once, in the famous case of Lionel Murphy, who died before the process could be concluded. There have been only two comparable proceedings concerning superior court judges in the states since Federation: in Queensland in 1989 and in New South Wales in 1997.
These two bills are being dealt with concurrently but I will deal with the Courts Legislation Amendment (Judicial Complaints) Bill first. This bill was developed in consultation with the chief justices of the Federal Court and the Family Court and the Chief Federal Magistrate. At present, informal processes exist in each of the courts for handling complaints about judicial officers, exercised by the chief justices and the Chief Federal Magistrate. However, with the increasing size of the courts—80 judges and 62 magistrates—there is a perceived need to have in place a statutory structure for dealing with complaints to ensure that participants in the process are immune from suit.
The bill also proposes the documents arising in the consideration and handling of a complaint against a judicial officer should be exempt from the operation of the Freedom of Information Act 1982. The complaints to be dealt with under the amendments proposed by the bill, in addition to 'proved misbehaviour and incapacity', in the words of section 72 of the Constitution, concern those about the performance by a judge in his or her judicial or official duties. They do not concern complaints about matters in cases that are capable of being raised in an appeal.
The framework itself for the handling of complaints is nonstatutory to provide for the appropriate level of flexibility. Less serious matters may be dealt with by discussion, whilst more serious matters may call for the establishment of a conduct committee which may comprise non-judicial members and possible reference to the Attorney-General. Very serious matters would be referred directly to the Attorney-General for consideration under section 72 of the Constitution and the procedure proposed to be established under the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012. On matters not warranting removal procedures, the chief judge may take any measures reasonably necessary, including temporarily restricting a judge to non-sitting duties.
I now turn to the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012, which is the bill we are debating concurrently here today. As members might recall, this bill was initially introduced as a private member's bill by a previous member of the parliament, Duncan Kerr—although, I understand, he had been working on the bill for some years in cooperation with the coalition. The bill provides a standard mechanism to assist parliament in its consideration of the removal of a judge or magistrate from office under the Constitution. The bill proposes the establishment, by a resolution of each house of parliament, of a parliamentary commission to investigate specified allegations of misbehaviour or incapacity of a specified Commonwealth judicial officer.
The commission would consist of three members appointed on the nomination of the Prime Minister after consultation with the Leader of the Opposition. At least one member of the commission must be a former Commonwealth judicial officer or a judge or former judge of the supreme court of a state or territory. Notably, serving Commonwealth judicial officers are not eligible for appointment. The commission may engage counsel, staff and consultants.
The role of the commission would be to inquire into allegations and to gather information and evidence to present to the parliament. It would conduct its investigations in an inquisitorial rather than adversarial manner. It would also have the power to require witnesses to appear at a hearing, to take evidence on oath, to conduct hearings in private; to require production of documents or other things and to issue search warrants. It would then provide a report to parliament through each of the parliamentary Presiding Officers. The bill does not provide for a standard of proof which the commission would consider necessary to be met before it reported to parliament. Section 72 of the Constitution leaves to parliament to determine what it considers to be proved misbehaviour or incapacity.
In order to preserve judicial independence, serving and former Commonwealth judicial officers would be exempted from the application of the commission's coercive powers. The Commonwealth would be liable for the reasonable costs of legal representation of the judicial officer under investigation. The Parliamentary Library's Bills Digests makes a very pertinent point about the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill, and I think it is worth quoting here in full. It says:
The provisions of the current Judicial Complaints Bill do not create problems or intrude into doubtful areas where problems of judicial independence may arise, as the heads of jurisdiction are responsible for receiving complaints and dealing with them. For example, the Chief Justice of the Federal Court is responsible for ensuring 'the effective, orderly and expeditious discharge of the business of the Court'.
It should also be noted that generally the submissions received by the Senate Standing Committees on Legal and Constitutional Affairs supported the provisions of this bill. The Law Council of Australia on the question of the internal judicial complaints procedures notes:
The establishment of a structure and the provision of the ability to establish conduct committees seems to us to not disempower but empower the head of jurisdiction and to assist the head of jurisdiction and what they are now doing.
Of the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill, the Bills Digests noted:
Having a framework in place for the Parliament to act efficiently on the question of judicial misbehaviour or incapacity will assist in promoting a transparent and effective complaints handling mechanism. This Bill achieves this, but is limited in its scope to address more divisive questions regarding section 72 of the Constitution, namely the definition of the terms 'misbehaviour' and 'proved'. This is not something the Bill has the authority to define so it is possible that, were a Judge to be subject to an allegation of misbehaviour or incapacity, similar problems will arise to those experienced during the Murphy affair. Harry Evans—
Who is a former Clerk of the Senate—
wrote in 1984 that ultimately:
the fact that the Houses are politically responsible bodies which deliberate in public may be regarded as additional safeguards for the proper exercise of the power. ...[T]he removal of a judge under section 72 probably would be a protracted and difficult process, which would make great impositions upon the operations of the legislature and the executive government. The likely difficulty and length of any proceedings may well be regarded as the best safeguard for the proper use of the power.
I conclude by noting that the coalition does not oppose passage of these bills; however, we do reserve the right to move amendments in the Senate pending the final report of the Senate Legal and Constitutional Affairs Legislation Committee, which is due on 15 July.