Thursday, 28 June 2012
Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012, Courts Legislation Amendment (Judicial Complaints) Bill 2012; Second Reading
I rise to speak on the Courts Legislation Amendment (Judicial Complaints) Bill 2012 and the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012. These bills are said to be designed to introduce greater transparency and accountability into the handling of complaints about judicial officers in our federal courts, and the coalition does not oppose these bills. The coalition also notes that these bills are, in fact, supported by the Law Council of Australia, who say in their submission:
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.
As I said, the coalition does not oppose these bills.
But, firstly, it is section 72 of our Constitution that sets out the guidelines for judges' appointments, their tenure and, if necessary, their removal from office. Section 72 of our Constitution provides:
The Justices of the High Court and 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.
These provisions in our Constitution have served our nation well, for they have provided the guidelines for statutory and judicial independence, a concept of vital importance. It is a concept that lies at the very heart of our democratic system that individual judges and the judiciary are impartial and independent of all external pressures. We need to ensure that the average Australian citizen who appears before the court can have the confidence that their case will be decided on its merits, impartially and fearlessly in accordance with the law, without a judge being influenced by self-interest or any other vested special interests of others. As the Hon. Sir Gerard Brennan once observed:
... a free society exists only so long as it is governed by the rule of law ...
So when our judges are sworn into office they take an oath or affirmation to do right by all persons without fear or favour, affection or ill-will. What these words mean in our judicial oath is that judges swear never to be frightened or intimidated by what needs to be done, neither will they unduly favour one party or the other.
The concept of judicial independence is also critical in a free society for, if ever a time comes when an individual needs to be protected from the state or whenever they have a dispute with another citizen, they need to be heard equally before the law by an impartial and fearless decision maker. Every citizen in our society needs to know that if that knock comes on the door late at night, or if their child is taken away by an overzealous child protection officer, or if they are arrested and placed into custody, or if their insurer unfairly refuses to pay a claim for damaged property, or if a large corporation tells lies and misleads a consumer in trade or commerce, or if a state or local government fails to do what it is bound by the law to do, it is an independent judiciary that the average citizen may turn to to seek justice to protect their rights, and their case will be heard before the law by an impartial and fearless decision maker.
However, our Constitution recognises that judges, like all of us, are human and that they should not be above criticism. It also recognises that circumstances may arise where a judge is no longer fit to hold office and, therefore, our Constitution provides the means by which a judge may be removed by the parliament on the grounds of misbehaviour or incapacity. The words 'misbehaviour' and 'incapacity' are not defined in section 72 of our Constitution. This is problematic because they are the only grounds upon which parliament can dismiss a judge. However, it is self-evident that misbehaviour or incapacity may include malfeasance, gross misconduct, gross immorality, high crimes or maladministration, and we would hope that these provisions in our Constitution would never be used, or rarely be used. In fact, there has been only one time since Federation that the parliament has had to consider dismissing a High Court judge, following allegations of misconduct against Justice Lionel Murphy in the mid-1980s.
Although this bill seeks to provide a framework whereby a person can lodge a complaint against one of Australia's 151 federal judges, section 75(v) of the Constitution already provides that the 'High Court shall have the original jurisdiction' in all matters 'in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth'. This was one part of our Constitution which was included as it was said to be an improvement in the guaranteed rights of all Australians, and it would be a violation of a citizen's rights—their Constitutional rights—if the High Court refused to hear any application filed under section 75(v).
However, despite the provisions of section 75(v), our Constitution currently does not provide any structure under which a person can lodge a complaint against one of Australia's 151 federal judges for misbehaviour or incapacity. That is what these bills seek to address. The Courts Legislation Amendment (Judicial Complaints) Bill 2012 amends the Family Law Act 1975, the Federal Court Act 1976, the Federal Magistrates Act 1999 and the Freedom of Information Act 1982 to provide a statutory basis for the relevant heads of jurisdiction to deal with complaints about judicial officers and also to provide immunity from the heads of jurisdiction as well as participants to a head of jurisdiction in the complaints handling process.