Thursday, 28 June 2012
Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012, Courts Legislation Amendment (Judicial Complaints) Bill 2012; Second Reading
I rise today to speak on the Courts Legislation Amendment (Judicial Complaints) Bill 2012 and the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012. This is a suite of bills designed to introduce greater transparency and accountability in the handling of complaints about judicial officers in the federal courts. 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 requesting such removal on the ground of proved misbehaviour or incapacity. As has been mentioned earlier in the debate, this has been invoked on only one occasion and it was in the case of Lionel Murphy, who passed away before the process could be concluded.
The amendments are designed to provide formal processes and procedures that currently would likely be conducted in a similar way, albeit without explicit statutory guidance. These bills will create an independent, transparent and accountable framework by enabling the establishment of parliamentary commissions to investigate allegations referred to the parliament for consideration. While instances of removal of judges from office in Australia have been extremely rare, the coalition understands that it is important that a clear framework is in place in the event that judicial misbehaviour needs to be addressed. The coalition is satisfied with this suite of bills, as it provides a standard mechanism to assist the parliament in its consideration of removal of a judge or federal magistrate from office. However, we want to wait for the final report from the Senate Legal and Constitutional Committee on 13 July and reserve our right to make any necessary amendments following that report.
I recognise that the Courts Legislation Amendment (Judicial Complaints) Bill 2012 was developed in consultation with chief justices of the Federal Court and the Family Court and with the Chief Federal Magistrate. It is understandable that with the increasing size of the courts—some 80 judges and 62 magistrates—there is a perceived need to have in place a statutory structure for dealing with complaints and to ensure that participants in the process remain immune from follow-up lawsuits. I note that these amendments, combined with the judicial complaints bill, are designed to support a largely non-legislative framework to assist the chief justices of the Federal Court and the Family Court and the Chief Federal Magistrate to manage complaints that are referred to them. It is anticipated that the vast majority of complaints would be dealt with through this internal mechanism.
I have had, however, not many but some constituents who have raised the issue with me of decisions by officers of the court where an additional process for resolving a complaint about the behaviour of a judge or magistrate would have required the process that is being brought before the parliament today. As such, I, along with my coalition colleagues, cautiously welcome these amendments. One particular resident of the seat of Macquarie has faced ongoing challenges with a chief magistrate from the Family Court. At this point in time, as has been mentioned by members opposite, issues that need to be handled at the Family Court are indeed complex and there are relationships and complexity around those relationships that are brought to bear in any decision made by the court. This particular individual who was directly impacted upon raised concerns regarding judicial procedures and behaviours with the current and previous federal Attorney-Generals. I believe that the processes that are recommended today could potentially go some of the way to resolving the issues that were raised by the constituent. This person expressed frustration to a range of members and departments and, in her own words, continued to 'run into brick walls'. In one letter from the assistant secretary at the Federal Courts branch, she was advised of the following:
You have expressed the desirability of having a proper inquiry into the proceedings and the handling of your complaint. Judicial independence from the executive arm of government is provided under the Australian Constitution to ensure that disputes between people, and between people and governments, are resolved by judges who are impartial and not subject to improper control or pressure. Consistent with this independence, it would not be appropriate for the Attorney-General, as First Law Officer, or the Attorney-General's Department to undertake an inquiry into the way your proceedings have been handled.
While this is accurate and understandable, the procedures and the process recommended today will, hopefully, go some way to enabling the parliament to at arm's length appropriately review the behaviour of officers of the court where it is necessary to do so.
While the introduction of this bill will provide some relief for similar situations to the one I have highlighted above, I note three of the three concerns in the advisory report handed down by the House of Representatives Standing Committee on Social Policy and Legal Affairs. The first is the need to legislate. The coalition, with good reason, remains cautious of the government's instincts to overregulate, particularly with regard to industries, and of the instincts of Australian government departments to attach additional red tape where it may not be necessary. According to the advisory report handed down by the House of Representatives Standing Committee on Social Policy and Legal Affairs, the Law Council of Australia also voiced similar concerns, stating:
The Federal Courts have each established effective formal complaints handling mechanisms with usually the head of the jurisdiction being ultimately responsible for deciding the response to a complaint. The Law Council believes that these existing mechanisms of dealing with complaints have operated successfully.
While it is recognised that these amendments have been developed in consultation with the chief justices of the Federal Court and Family Court and the Chief Federal Magistrate, it would be beneficial for the Attorney-General to clarify to what extent the department considered the comments made by the Australian Law Council. These complaints echo the concerns voiced in 2001 at the Judicial Conference of Australia where Justice Drummond noted that a complaints system would be likely to encourage complaints where no judicial misconduct had occurred. The second issue to highlight with regard to these bills is that the High Court will remain exempt from the judicial procedure. In the second reading speech on 14 March this year, the Attorney-General stated:
This bill will not apply to the High Court.
That is because the High Court's position at the apex of the Australian judicial system means that it could be called upon to determine the validity of any structure established to handle judicial complaints.
While I accept that the High Court is at the apex, could the Attorney-General please explain how complaints against the High Court will be managed on the occasion that they arise, and will there be a formal process introduced with regard to this procedure? I understand that the submission from scholars at the University of Adelaide Law School raised similar concerns. In their submission, the scholars pointed out that the judicial complaints bill does not provide for the investigation of complaints against the head of the jurisdiction. The scholars consider, therefore, that 'the bill does not provide complete coverage'. I understand that the Attorney-General has responded to this by stating that, under section 72 of the Constitution, these complaints would be managed by the parliament. However, I reiterate the concerns of the scholars. Additional information is required, particularly with regard to how the formal process will ensure that complete coverage and consistency is achieved by the amendments.
The third and final issue that I wish to highlight, and which was highlighted in the advisory report, is with regard to the integrity and reputation of the judiciary. The House of Representatives committee highlighted that this integrity may be compromised by establishing a framework for a parliamentary commission to investigate possible misbehaviour or incapacity, meaning that an adverse finding against a single judge could leave the entire judiciary more vulnerable to criticism. A finding of incapacity might also have implications for previous rulings by that judge. In recent times, these types of situations have remained open to much media scrutiny or, as it is commonly known, trial by media. If the judiciary complaints mechanism as proposed by these bills finds that there is reasonable cause to believe that the complaint is unfounded, what will the implications be for the reputation of the judiciary member and the integrity of the judiciary process itself? The Attorney-General needs to clarify how the integrity of the judiciary will be retained under the mechanisms that are detailed in the amendments, specifically in the circumstances I detailed earlier on, at point 1, where it can be expected that there will be an increase in the number of complaints raised against the judiciary.
The coalition does not oppose these bills. However, we will wait for the final report from the Senate Legal and Constitutional Affairs Legislation Committee on 13 July. Given the concerns that I and others have raised, we reserve our right to make amendments if they are necessary. I commend the bills to the House.