Thursday, 28 June 2012
Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012, Courts Legislation Amendment (Judicial Complaints) Bill 2012; Second Reading
I rise to support the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 and the Courts Legislation Amendment (Judicial Complaints) Bill 2012. The only reservation I have is that we need to be very careful. The number of complaints against Federal Court judges has been very limited. My only fear is that, when you set up bodies and people know about the bodies, it might attract people to make complaints because they are unhappy with particular decisions, particularly Family Court and Magistrates Court decisions. This is the one reservation I have about judicial commissions. In New South Wales we could get rolling complaints because we have a complaint mechanism. I am not against having a look at legitimate complaints.
I accept that the High Court is removed from this process, and I believe it should be. If there is a complaint against a High Court judge then, because of the nature of the High Court, the parliament should deal with that as required. There are two cases where complaints have been made about High Court judges. The first was about the late Justice Lionel Murphy. That was a matter which, for me, showed one way that the parliament should not deal with matters. There was a Senate Select Committee on the Conduct of a Judge, which reported in August 1984, and that committee just broke along party lines. So I am not an advocate of a parliamentary committee per se doing the initial investigation or making whatever recommendation. The Judicial Commission of New South Wales have the model, I think, that this legislation is based on. They gather the evidence but they do not make a recommendation. But I think they are better at gathering evidence—where a commission is set up for that particular purpose—than a Senate committee or a House of Representatives committee or whatever, which can break up along party lines.
There is a great tragedy about this, and we forget it. We have just had the anniversary of the accusations against Lindy and Michael Chamberlain, and the coroner in the Northern Territory nailing that, taking 30 years. The furore that was around in relation to His Honour Mr Justice Lionel Murphy led to the fact that a High Court judge could not get a fair trial in this country. That is what happened. Mr Justice Cantor, the most successfully appealed-against Supreme Court judge in New South Wales, presided over the original trial. A specially constituted Court of Appeal and Court of Criminal Appeal was expanded to five, found unanimously on eight points where the trial had miscarried and did not bother to determine another 20 odd, and on his retrial Mr Justice Murphy was acquitted. But we had a situation where the furore and frenzy of the media and politicians created a climate in which a High Court judge could not get a fair trial. That should not happen again. I was a practitioner in the law at that time, defending people charged with criminal offences. I was employed by the Legal Aid Commission of New South Wales. So that case has continued to stick in my craw.
The other matter that stuck in my craw was the complaint made by Senator Heffernan against His Honour Justice Michael Kirby. That complaint was made in relation to a training manual for Comcar drivers. Senator Heffernan, the Cabinet Secretary, made a number of serious allegations which, frankly, did not last all that long. This is what happened. I have the press release of the then Attorney-General, the Hon. Daryl Williams AM QC MP, of 19 March 2002. The first paragraph says:
Last night the Prime Minister announced that he had asked Senator Heffernan to resign from his position as Cabinet Secretary and to deliver an unqualified apology to Justice Michael Kirby for the allegations he made in the Senate last week.
Senator Heffernan did not offer his resignation; he basically was forced to resign, as he should have been. And Justice Michael Kirby, as he then was, wrote to the Speaker:
I have the honour to attach a copy of a statement which I am releasing following the speech in the House by Senator the Honourable Bill Heffernan.
If you consider it appropriate and the House gives permission, the statement might be tabled.
The statement by Justice Michael Kirby said:
My family and I have suffered a wrong. But it is insignificant in comparison to the wrong done to Parliament, the High Court and the people.
I have been sustained by my innocence, by the love of my partner and family and support and prayers from all sections of the community.
I accept Senator Heffernan's apology and reach out my hand in a spirit of reconciliation. I hope that my ordeal will show the wrongs that hate of homosexuals can lead to.
Out of this sorry episode, Australians should emerge with a heightened respect for the dignity of all minorities. And a determination to be more careful in future to uphold our national institutions—the Parliament and the Judiciary.
The reason that the lie that had been perpetrated was nailed so quickly was that there was actually a copy on the front page of the Sun-Herald at the time that showed the purported entries of those who had had access to Comcars, and Laurie Brereton's name was there. He checked his diaries and knew that he had not had a Comcar on that day. That led to the discovery that what Senator Heffernan was relying on were mock records to do with the training of Comcar drivers. That was resolved very quickly.
What we need here is a respect for our institutions, a respect for the separation of powers. I support this framework, which I note that the House of Representatives standing committee has unanimously recommended should proceed. I note that, in relation to the selection of the members of the commission, the legislation allows for the Prime Minister to consult the Leader of the Opposition, as it should. That is a mechanism that has been used in legislation in the past—indeed, the former Council for Aboriginal Reconciliation used to be appointed on the basis of consultation with the Leader of the Opposition. These things need to be drawn back from politics, because it might suit one side or the other to go after a particular judge because of the balance on the High Court or whatever. I am using theoretical positions here, not positions of the past.
We all know that Senator Heffernan has a particular obsession—and it is an obsession that he genuinely believes, but it is an obsession. In this instance, he made a very serious allegation against a High Court judge under parliamentary privilege, and that allegation did not stand the test of time, whereas Lionel Murphy had to go through a number of inquiries, a number of trials. As I said, the thing that sticks in my craw is that a High Court judge in this country could not even get a fair trial because of the nature of publicity and the nature of the allegations. As I say, for a specially constituted appeals court in New South Wales to unanimously agree on eight matters and not worry about the other 20—because they did not—is an embarrassment to us all.
I know that these matters are the subject of a Senate committee still reporting. This is not, as I have read it, contentious. It is a framework that can stand, hopefully, the test of time. But, if it needs to be revisited or it needs to be looked at, my own urgings are that it be done in a bipartisan fashion.
When we deal with our judiciary—frankly, when we deal with any individual—we should afford them proper process. I never agreed with the Temby doctrine that led to the late Justice Lionel Murphy's prosecution. The Temby doctrine—and it was at the time a doctrine that created a lot of debate—was that if you were in a public position the assumption was that you would be prosecuted to clear the air. My view is that whether you are a Callithumpian, a High Court judge, a Federal Court judge or a member of parliament the same standards should apply. The reason we need to do this—as the honourable member opposite, the member for Berowra, the Father of the House, would know—is that the judiciary in our Constitution holds, at a federal level, a particular place. At the end of the day, it is a matter for the parliament to determine the fate of a judicial officer in relation to misbehaviour, whatever that definition comes to. As he is the longest-serving member here, he knows that you can be on one side of the debate one minute and the other side of the debate the next minute, depending on what position you occupy. To me, you need to be on the same side of the debate all the way through; we all need to be on the same side of the debate all the way through. I have a strong view about the separation of powers: I respect them and I do not take kindly to the undermining of the judiciary, even if I might not necessarily agree with what the judiciary say. In my personal life as a legal aid solicitor and barrister I have seen cases that on the face of it look to be a lay-down misere; but, when the evidence unfolds, there is always a second side to the story. Vice versa, you think you are on a winner one minute and then evidence comes forward and bang!—guilty, Your Honour.
With this, I want to see the honourable member opposite, the father of the House, get up and say, 'I support the legislation' because it meets certain criteria and certain principles. From what I can gather from the House of Representatives committee, it has been given the tick. The Law Council of Australia says in a letter dated 30 April:
The Law Council considers that the establishment of a formal process to investigate allegations of misbehaviour and incapacity raised against Federal judicial officers will assist in further enhancing the transparency and integrity of the judicial system.
The Law Council considers that the proposed models provide a suitable mechanism through which to consider and investigate allegations of misbehaviour and incapacity raised against Federal judicial officers.
… … …
The model for appointment of the Presiding Member of a Parliamentary Commission seems appropriate and appears to address concerns previously raised by the Law Council, in relation to the potential politicisation of the role and the subsequent risk of undermining judicial independence.
From that, I take it there has been a consultation process and there has been some tweaking, which is as it should be.
This is very serious. As I said to you, Mr Acting Deputy Speaker Adams, I am not keen on it, because I do not want it to be a mechanism that attracts complaints; however, having said that, with the nature of our society and of the world we live in, it is better to bring in something like this before a complaint is made, so we can deal with it without any baggage. The counterargument is to have a mechanism that we can agree on in the event that it needs to be used. Let us do it now. Let us do it in the right atmosphere. Let us do it with goodwill. Let us do it with people making their contributions and with legitimate criticisms or suggestions being taken on board.
I am quite happy to stand before the House and support these bills. They deserve support in their current form. I used those other matters to point out what I thought were lessons of history. We make mistakes in the past; we should not repeat the mistakes. I do not think this legislation is repeating the past. I think it has been done in the spirit of doing something before the necessity of doing it, so that it is there if it is needed.