Monday, 31 May 2010
Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill 2010
Debate resumed from 22 February, on motion by Mr Kerr:
That this bill be now read a second time.
The Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill 2010 establishes the independent Parliamentary (Judicial Misbehaviour or Incapacity) Commission. The commission is designed to assist the parliament in the exercise of its constitutional responsibility if instances of alleged misbehaviour by or incapacity of any justice are referred to it by either this House or the Senate.
The bill should be read together with the proposed standing order ‘Address for removal of federal justice’ published in my name in the Notice Paper. If the bill becomes an act it will be incumbent on the House and the Senate to adopt such procedures to ensure that the processes in this bill are not triggered for trivial reasons or without procedural fairness.
Because the time for this debate is limited I will not repeat remarks I made when introducing the bill to the House on 22 February 2010. I would request that that speech be referred to as explaining this bill for the purposes of its interpretation as if it were incorporated in this second reading debate.
Judicial independence is an essential bulwark against all excess of power. Yet, as the Chief Justice of the High Court has recently affirmed, the authority of the law and the legitimacy of the judiciary depend upon public confidence. If no settled and transparent process exists to respond to instances of alleged serious wrongdoing by or incapacity of federal judges and magistrates we gamble with that confidence.
The drafters of our Constitution protected the independence of each justice appointed under chapter 3 by guaranteeing them secure tenure—originally for life, now to the age of 70—while authorising their removal for cause for proved misbehaviour or incapacity.
Professor Blackshield observes that section 72 ‘has a double purpose: to ensure that no-one but parliament can remove a judge from office, but also to ensure that parliament can’. The exercise of that power requires the concurrence of both the House of Representatives and the Senate.
Sadly the Murphy affair more than 30 years ago demonstrated how singularly ill-equipped our parliamentary procedures were to discharge that weighty responsibility. We have made no improvements since then. For those who question why we must act when serious allegations against federal judicial office holders are rare and when no immediate allegation against a judge is in prospect there are two answers. The first is that the time to ensure the balance is right. In ensuring both fairness and rigour, when nothing controversial is on the horizon, we can be dispassionate and uninfluenced by partisan considerations. The second is that the number of federal justices appointed under chapter 3 has grown exponentially.
Human nature being as it is, as the number of federal justices now exceeds those of many states, instances requiring the attention of the parliament will almost certainly arise. We should be ready for that and armed with a fair and just mechanisms that are known in advance both to the parliament and to the judge before any issue of controversy explodes. It is quite implausible that either the House or the Senate could deal with serious allegations against a justice without the assistance of a preliminary investigation of a body of the kind proposed by this measure. Parliament should not risk being again left to adopt ad hoc responses shaped in the heat of crisis.
I refer members who desire a more comprehensive account of the rationale for this bill to an excellent paper by Tom Browne prepared as part of the Australian National Internships Program. That paper appends a comprehensive literature review.
I thank the shadow Attorney-General, Senator George Brandis SC, who has worked with me to refine this legislation. It has been improved by his input. I understand he will sponsor the amended bill in the Senate after its passage through this place and has obtained the support of the opposition party to that end. It is sensible that a measure such as this will emerge as the product of the work of private members and senators who are also senior members of the bar rather than as a bill sponsored by the government. It makes it clear, if there was any suspicion, that this is not pursued by the executive to chasten the courts.
I also express appreciation to my colleagues in the caucus who voted to allow me to introduce this bill as a private member. I thank the Attorney-General for making available to me the expertise of his department and the drafting skills of the Office of Parliamentary Counsel respectively to suggest and draft amendments to the bill to better ensure its consistency with other legislation. I thank the Clerk of the House and his officers for their assistance with the first draft of the bill. I thank the Greens and the Independents I have discussed this bill with for their acceptance of the necessity for it. I thank the Leader of the House and the Whips for recognising the importance of allowing time for this debate and its resolution.
Finally, I foreshadow that on the third reading I will be moving the agreed amendments standing in my name. An explanation of those amendments is included in the supplementary explanatory memorandum. I seek leave to table the supplementary explanatory memorandum and the ANIP paper that I referred to.
May I first make it clear that the opposition intends to support this measure. Reference to my colleague in the other place, the shadow Attorney, was well taken and I thank the member for Denison for his cooperation with the opposition in the consideration of this matter. I listened very carefully to his remarks and it seemed to me the most important observation of his that it was a sensible measure that should emerge as the product of the work of private members and senators who are also senior members of the bar rather than a bill sponsored by the government and to make it clear if there was any suspicion that it was not pursued by the executive to chase in the courts. This is an unusual measure in that context but I think that well explains why the bill is coming forward in the way in which it is.
The purpose is to fill a longstanding gap in the constitutional provisions concerning the removal of judges for proven misbehaviour or incapacity under section 72(ii) of the Constitution. It has never been the case that there is a mechanism for establishing the veracity of allegations that might result in the conclusion of misbehaviour or incapacity. This bill is designed to fill that gap. It will establish a body to be known as the Parliamentary Judicial Misbehaviour or Incapacity Commission to hear serious complaints and make recommendations to the parliament, in other words to ensure that the relevant section of the Constitution is adhered to but on the basis of having the parliament having before it information which will enable it to come to a sensible conclusion.
It was the case some time ago involving Mr Justice Murphy in the early 1980s that highlighted the need. I can well recall the consideration as to how the Senate was to obtain advice to assist it in reaching conclusions in relation to the allegations that were being made. Of course, our federal judiciary has expanded significantly in recent years. There are a large number of federal court judges, from the High Court to the Federal Court, the magistracy and the Family Court. There will probably be a military division shortly as well. When you look at the very large number of people involved it is surprising in a sense that these issues rarely arise. Perhaps I should say it is not surprising, because I think it reflects very highly on the quality of our judiciary. I can say as a former Attorney that matters of this sort were not raised with me about members of the judiciary when I was in that office. There is a matter that the member for Denison and I are familiar with but I do not think it went to incapacity or misbehaviour. I could vouch for the fact that we do have a situation in which it is rare that issues of this sort should arise, but I think the point has been made that if it is to arise it is better that a method has been already established rather than the parliament has to turn its mind afresh to establishing the question of how it is going to obtain the evidence. In other words, it will give clear guidance to assist the parliament in how to determine whether alleged misconduct is proven and therefore warrants the removal of a judicial officer. It is that absence of a known and transparent process that had the potential to undermine confidence both in the parliament and the judiciary if we had not addressed it.
Let me make it very clear: when the matter is considered, perhaps in the chamber, as to whether the bill should be passed, it has the support of the opposition. It is a matter that the shadow Attorney will be addressing in the Senate by moving to support the proposed legislation. I thank the honourable member for bringing the matter before us; I think he has done a service to the nation.