Monday, 22 February 2010
Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill 2010
Bill and explanatory memorandum presented by Mr Kerr.
This bill will establish an independent commission to assist the parliament in the exercise of its powers to remove a federal justice in circumstances of proved misbehaviour or incapacity pursuant to section 72 of the Constitution. The commission established by the bill will provide a mechanism for the independent and impartial testing of complaints against federal judicial officers and reduce the potential for damaging and unfounded attacks on the federal judiciary. The House and the Senate retain their exclusive constitutional powers. The commission acts simply to inform the judgment and conscience of members and senators. It will remain open to the parliament to accept or reject any recommendation for the removal of a justice.
The bill should be read together with proposed new standing order, ‘Address for the removal of a federal justice’, published in the Notice Paper. This will ensure that the procedures in this bill are not triggered for trivial reasons. A member who, deliberately or recklessly, puts forward baseless allegations against a justice is guilty of serious contempt of the House. Any justice facing removal following an adverse report by the parliamentary commission will be permitted to address the House before any vote is taken.
The bill fills a vacuum. Currently, there is no process to deal with allegations against federal justices. The case of Justice Lionel Murphy in the early 1980s highlighted the need for there to be a clear and consistent method for dealing with any alleged misconduct by federal judges. Serious allegations were made against Justice Kirby during his term on the bench and but for their quick disproof parliament would again have been unready to deal with that controversy as it would now be if concerns arise about a federal judge regularly falling asleep or suffering failing mental health if they should decline well-intentioned entreaties to voluntarily retire.
The federal judiciary has expanded significantly in recent years and now includes a large number of federal judicial officers spanning the High Court, Federal Court, Federal Magistrates Court and Family Court. There are plans to establish a chapter III Military Court. There are currently 145 federal justices who have been appointed under the Constitution. As a consequence there is increased potential that the parliament will be called on to exercise its exclusive constitutional power to remove a federal judicial officer for misconduct or incapacity. Such occasions will be rare, but this bill is premised on the view that with the expansion in their number such occasions inevitably will arise and it is sensible to decide in advance how those matters will be dealt with so that there can be no suggestion that the process is biased for or against the interests of any particular justice.
The parliamentary commission has no independent powers to initiate removal procedures and no power to reprimand or dismiss justices. This is a conservative constitutional approach to ensure validity. There are grounds, such as those advanced by Quick and Garran, to support the view that the structure and language of chapter III of the Australian Constitution prevents the parliament giving such powers to any administrative or executive body because that would involve an impermissible interference with constitutionally protected judicial independence.
The bill details the powers of the commission to conduct an inquiry when a matter is referred to it by either the House or the Senate. It sets out the commission’s function to provide advice to the parliament as to whether or not in its opinion facts amounting to proved misbehaviour or incapacity exist as would warrant the removal of the judicial officer from office under section 72 of the Constitution.
The bill creates a number of offences relating to the commission’s proceedings and provides that chapter 2 of the Criminal Code will apply to these offences. Offences under the bill include unauthorised publication of evidence, the failure of witnesses to attend or produce documents, refusing to be sworn or give evidence, providing false or misleading evidence, destroying documents and other things, causing injury to witnesses, dismissing an employee for involvement at the commission, preventing witnesses from attending the commission or producing a document, bribery of a witness, fraud on a witness and contempt of the commission.
It is implausible that either the House or the Senate could deal with serious allegations against a justice without the assistance of a preliminary investigation by a body of the kind proposed by this measure. The parliament cannot delegate its ultimate constitutional responsibilities under section 72 to any other body but it is entitled to appoint suitable advisors and to empower those advisors to assist it to discharge its constitutional functions. That is what this bill provides for. Ad hoc processes are bound to be seen as unfair and risk unwarranted damage to the reputation of any judge or magistrate affected by them. The bill will establish a consistent, rule based method for reporting to the parliament by an evidence based process which is transparent, consistent and accountable.
The commission’s functions will provide transparency and impartiality to the process of the determination of claim of misconduct or incapacity against a federal judicial officer. I commend the bill to the House.
Bill read a first time.