Thursday, 28 June 2012
Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012, Courts Legislation Amendment (Judicial Complaints) Bill 2012; Second Reading
I take the opportunity to speak in support of the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 and the Courts Legislation Amendment (Judicial Complaints) Bill 2012. I will focus my remarks on the first of those two bills.
Unlike the member for Berowra, I not only acknowledge but commend the work of the former member of this place, the Hon. Duncan Kerr, for getting this legislation before the House. Perhaps later in my contribution I will try and respond to some of the concerns that the member for Berowra raised and his view that perhaps there is not enough justification for the bill, because I feel quite the opposite.
The Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill sets out to provide a mechanism to assist the parliament in its consideration of the removal from office of a judge or federal magistrate under the Constitution. Commonwealth judicial officers are appointed under section 72 of the Australian Constitution. The relevant portion of section 72 states:
The Justices of the High Court and of the other Courts created by the Parliament:
(i) shall be appointed by the Governor-General in Council;
(ii) shall not be removed except by the Governor-General in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity ...
Section 72 further states:
The appointment of a Justice of the High Court shall be for a term expiring upon his attaining the age of seventy years, and a person shall not be appointed as a Justice of the High Court if he has attained that age.
Once appointed, subject to the provisions of section 72 of the Constitution relating to misbehaviour or incapacity, judicial officers hold their position until they are 70 years of age. The questions that therefore arise are: who determines misbehaviour or incapacity; what process is used to make that determination; and what criteria are used in the process in order to advise the Governor-General in Council? Currently there are none.
The Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill establishes a process. The bill will allow for the establishment of a parliamentary commission, where a resolution is passed by each house of the parliament to investigate a specified allegation about a specified Commonwealth judicial officer—that is, a High Court judge, a judge of the Federal Court of Australia or the Family Court of Australia, or a federal magistrate. The commission is to investigate the allegation and report to the houses of parliament on whether there is evidence that would let the houses of parliament conclude that the alleged misbehaviour or incapacity is proved. If the alleged misbehaviour or incapacity is proved and both houses of the parliament request the removal of the judicial officer, the judicial officer may be removed by the Governor-General in Council in accordance with paragraph 72(ii) of the Constitution.
I note that the legislation states that, if the misbehaviour or incapacity is proved, the judicial officer may be removed. It does not say that they will be removed. I can only assume that part of the reason for that is that the position may well be made by a majority of the three members of the commission—that is, it may be the case that two of the three members have one view and the third member has a different view. Therefore, ultimately, the removal remains a decision of the parliament.
Judicial officers are not infallible. Like all people in society they have their beliefs, their political views, their strengths and their weaknesses. Yet once appointed they hold a very responsible position in society—an influential, privileged position. Their judgments can change the course of a government and of a nation. I recently spoke about that in the debate on the 20th anniversary of the Mabo decision. Their judgments can also profoundly affect the future of individuals and families.
I often hear about that from people who have had to appear before the Family Court of Australia. The member for Blair made reference to the Family Court in his remarks during this debate. These are highly responsible appointments and I have no doubt that the people appointed to the judiciary understand that. But they are also appointments made by governments, and governments have political agendas. The delivery of those agendas is often dependent on having a sympathetic or like-minded judiciary. As we all know from the debates in this place, it is always possible to advance an argument that justifies your end position. It is no different in the judiciary.
Perhaps the most prominent example of that was during the 1975 constitutional crisis, with the removal of the Whitlam government and the differences in legal opinion at the time between the Solicitor-General, Maurice Byers, and the Rt Hon. Sir Garfield Barwick, Chief Justice of the High Court. There were several other prominent legal identities who at the time also differed in their interpretations of the Constitution. Subsequent to that, we saw what I can only describe as the political persecution of the Hon. Lionel Murphy in a protracted, failed attempt to have him removed from office. In his remarks, the member for Banks referred to the Hon. Lionel Murphy in a much more detailed fashion than I will. Lionel Murphy's judgments reflected many of his personal convictions, and there is no doubt in my mind that many of his judgments would not have been received well by the Liberal government at the time.
Lawyers become familiar with the rulings and leanings of members of the judiciary and it is not unusual for lawyers to want their cases heard by whom they perceive to be sympathetic judges. Further evidence that judicial appointments are made by governments, who in turn take into account a prospective appointee's political leanings, was the refusal for years by successive governments in South Australia, both Liberal and Labor, to appoint Elliott Johnston QC to the bench in South Australia because of his Communist Party beliefs. It was not until the election of the Bannon government that in 1983 Elliott Johnston was finally appointed as a justice of the Supreme Court in South Australia.
This legislation appoints a commission of three people to carry out the necessary inquiry where there have been allegations of misconduct or incapacity. It is not a permanent commission but one appointed whenever the need arises. I also note that at least one person would be a retired judge who would be nominated by the Prime Minister in consultation with the Leader of the Opposition. That is an important safeguard to ensure that the appointment is free of politics. However, the appointment of a retired judge raises the following question: if the retired judge is more than 70 years of age—and it is most likely that they would be, and therefore not eligible to continue as a judge—should that person equally be disqualified from sitting on a commission that has a very similar function to that of a judiciary?
I said earlier that members of the judiciary are not infallible. In response to the member for Berowra, who made the case that this legislation is perhaps unwarranted at this stage, I say that in recent years there have been several examples in state jurisdictions of judges or magistrates being required to step down or being suspended for reasons of either inappropriate conduct or incapacity. I do not intend to list them or to name any of them, but the fact is that in recent years there have been many, many cases. It is true that they have occurred in the state jurisdictions, not in the federal jurisdiction. But, with 142 members of the federal judiciary in office right now, with that number perhaps to grow, having the necessary legislation in place to deal with unforeseen situations that may arise is a responsible approach for this parliament to take. Of course, the parliament can at all times act without advice from such a commission, as it does at present, and that is only proper and within the responsibility of the parliament.
I take this opportunity to congratulate Justice Chris Kourakis on his appointment as Chief Justice of the Supreme Court of South Australia. He will be formally sworn in next week and will then become South Australia's ninth Chief Justice in 175 years. Justice Kourakis was admitted to practice law in 1982 and joined the bar in 1989. Between 2001 and 2002, Justice Kourakis was President of the Law Society of South Australia. He subsequently held the position of Solicitor-General for five years before he was appointed to the Supreme Court in 2008. I commend his appointment and wish Justice Kourakis well with his additional responsibilities.
In closing, this legislation puts in place a framework should the need arise. It is responsible legislation and I and, I am sure, all members of this House hope that the framework and the process are never required. But if they are required at least we will have a process in place that can assure all of us that a judgment on a sitting member of the judiciary will be made impartially and independently. If and when this parliament is put in a position where it has to make a decision it will have done so by having the proper inquiry carried out and recommendations put before it. For those reasons, I commend the legislation to the House.