Thursday, 28 June 2012
Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012, Courts Legislation Amendment (Judicial Complaints) Bill 2012; Second Reading
This is a suite of bills to provide a formal basis for the discipline and constitutional removal of judicial officers. At present the only formal legislation dealing with judicial complaints is found in section 72 of the Constitution, which provides for removal by the Governor-General in Council 'on an address from both Houses of Parliament … praying for such removal on the grounds of proved misbehaviour or incapacity'. It has been invoked only once, in the famous case of Lionel Murphy, who died before the process could be concluded. There have been only two comparable proceedings concerning superior court judges in the states since Federation: in Queensland in 1989 and in New South Wales in 1997.
These two bills are being dealt with concurrently but I will deal with the Courts Legislation Amendment (Judicial Complaints) Bill first. This bill was developed in consultation with the chief justices of the Federal Court and the Family Court and the Chief Federal Magistrate. At present, informal processes exist in each of the courts for handling complaints about judicial officers, exercised by the chief justices and the Chief Federal Magistrate. However, with the increasing size of the courts—80 judges and 62 magistrates—there is a perceived need to have in place a statutory structure for dealing with complaints to ensure that participants in the process are immune from suit.
The bill also proposes the documents arising in the consideration and handling of a complaint against a judicial officer should be exempt from the operation of the Freedom of Information Act 1982. The complaints to be dealt with under the amendments proposed by the bill, in addition to 'proved misbehaviour and incapacity', in the words of section 72 of the Constitution, concern those about the performance by a judge in his or her judicial or official duties. They do not concern complaints about matters in cases that are capable of being raised in an appeal.
The framework itself for the handling of complaints is nonstatutory to provide for the appropriate level of flexibility. Less serious matters may be dealt with by discussion, whilst more serious matters may call for the establishment of a conduct committee which may comprise non-judicial members and possible reference to the Attorney-General. Very serious matters would be referred directly to the Attorney-General for consideration under section 72 of the Constitution and the procedure proposed to be established under the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012. On matters not warranting removal procedures, the chief judge may take any measures reasonably necessary, including temporarily restricting a judge to non-sitting duties.
I now turn to the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012, which is the bill we are debating concurrently here today. As members might recall, this bill was initially introduced as a private member's bill by a previous member of the parliament, Duncan Kerr—although, I understand, he had been working on the bill for some years in cooperation with the coalition. The bill provides a standard mechanism to assist parliament in its consideration of the removal of a judge or magistrate from office under the Constitution. The bill proposes the establishment, by a resolution of each house of parliament, of a parliamentary commission to investigate specified allegations of misbehaviour or incapacity of a specified Commonwealth judicial officer.
The commission would consist of three members appointed on the nomination of the Prime Minister after consultation with the Leader of the Opposition. At least one member of the commission must be a former Commonwealth judicial officer or a judge or former judge of the supreme court of a state or territory. Notably, serving Commonwealth judicial officers are not eligible for appointment. The commission may engage counsel, staff and consultants.
The role of the commission would be to inquire into allegations and to gather information and evidence to present to the parliament. It would conduct its investigations in an inquisitorial rather than adversarial manner. It would also have the power to require witnesses to appear at a hearing, to take evidence on oath, to conduct hearings in private; to require production of documents or other things and to issue search warrants. It would then provide a report to parliament through each of the parliamentary Presiding Officers. The bill does not provide for a standard of proof which the commission would consider necessary to be met before it reported to parliament. Section 72 of the Constitution leaves to parliament to determine what it considers to be proved misbehaviour or incapacity.
In order to preserve judicial independence, serving and former Commonwealth judicial officers would be exempted from the application of the commission's coercive powers. The Commonwealth would be liable for the reasonable costs of legal representation of the judicial officer under investigation. The Parliamentary Library's Bills Digests makes a very pertinent point about the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill, and I think it is worth quoting here in full. It says:
The provisions of the current Judicial Complaints Bill do not create problems or intrude into doubtful areas where problems of judicial independence may arise, as the heads of jurisdiction are responsible for receiving complaints and dealing with them. For example, the Chief Justice of the Federal Court is responsible for ensuring 'the effective, orderly and expeditious discharge of the business of the Court'.
It should also be noted that generally the submissions received by the Senate Standing Committees on Legal and Constitutional Affairs supported the provisions of this bill. The Law Council of Australia on the question of the internal judicial complaints procedures notes:
The establishment of a structure and the provision of the ability to establish conduct committees seems to us to not disempower but empower the head of jurisdiction and to assist the head of jurisdiction and what they are now doing.
Of the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill, the Bills Digests noted:
Having a framework in place for the Parliament to act efficiently on the question of judicial misbehaviour or incapacity will assist in promoting a transparent and effective complaints handling mechanism. This Bill achieves this, but is limited in its scope to address more divisive questions regarding section 72 of the Constitution, namely the definition of the terms 'misbehaviour' and 'proved'. This is not something the Bill has the authority to define so it is possible that, were a Judge to be subject to an allegation of misbehaviour or incapacity, similar problems will arise to those experienced during the Murphy affair. Harry Evans—
Who is a former Clerk of the Senate—
wrote in 1984 that ultimately:
the fact that the Houses are politically responsible bodies which deliberate in public may be regarded as additional safeguards for the proper exercise of the power. ...[T]he removal of a judge under section 72 probably would be a protracted and difficult process, which would make great impositions upon the operations of the legislature and the executive government. The likely difficulty and length of any proceedings may well be regarded as the best safeguard for the proper use of the power.
I conclude by noting that the coalition does not oppose passage of these bills; however, we do reserve the right to move amendments in the Senate pending the final report of the Senate Legal and Constitutional Affairs Legislation Committee, which is due on 15 July.
Our system of government is a combination of the system of the United Kingdom and the system of the United States. This extends even to the terminology of the parliament. Like the Americans, we do have not a House of Commons but a House of Representatives and not a House of Lords but a Senate. One way in which we have not followed our American friends is in the idea of the popular election of judges. In Australia governors-general are appointed by the government of the day, and eminent jurists, barristers and solicitors, and people in academia are appointed to positions of note. They usually have to have qualifications and to have been a solicitor or barrister of at least five years good standing. They often take recommendations from bar associations, law societies and other institutions, and we vet them very carefully.
This does not mean that the High Court of Australia, for instance, has not vexed governments from the time of the engineers' case through the uniform taxation legislation and the bank nationalisation cases, the Communist Party dissolution legislation case and the Franklin dam decision to the Mabo decision. So High Court decisions have sometimes encouraged governments, sometimes caused them grief and at other times resulted in further legislation having to be passed through this place or through the other chamber to make sure that the laws of this country are in the line with the Constitution. I pay tribute to our founding fathers, who put section 72 in the Constitution. Section 72(ii) of the Constitution says:
The Justices of the High Court and of the other courts—
and that includes the Federal Court and the Federal Magistrates Court—
created by the Parliament:
(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;
It is right and proper that the executive and the legislature should be separated from the judiciary. So we need fearless, frank and honest judges in our courts, and they should be able to go about their decisions without fear or favour, without corruption and with integrity.
It is important that, despite the fact that they might cause trouble, confusion or angst for government, we respect them for their position. They are appointed under the Constitution until 70 years of age in the case of federal judicial appointments. I pay tribute to the former member for Denison, the Hon. Duncan Kerr, for his advocacy in relation to addressing a mechanism that concerns section 72 of the Constitution. There is no mechanism in place about how this happens. As the previous speaker said, in the case of New South Wales and Queensland, on a couple of occasions we have seen the removal or purported removal of jurists. In circumstances like that it is very clear that if we get it done it needs to be done correctly and in line with proper process.
The first of these two bills, the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012, deals with a standard mechanism for the Commonwealth parliament to consider the removal of a judge under section 72 of the Constitution. It is proposed under this legislation that a commission be established and that three members be appointed by the houses of parliament, one being a retired judge—and I think it is appropriate that we have someone who has had experience in the judiciary and who understands what has gone on. The members are to be nominated by the Prime Minister—which happens in many appointments, from the appointment of the Governor-General through to judiciary appointments—in consultation with the Leader of the Opposition.
One reason I think that is important is that we do not want a strong government to overbear and we do not want there to be political interference in relation to this matter. So there needs to be a bipartisan approach on this issue. It is necessary, I think, for any commission recommendation to be supported by the opposition, whether that be Labor or Liberal. In the last 40 years we have had both sides of the political spectrum on this side of the chamber for equal time, so it is important that we do this in a cooperative manner.
As I have said before, parliament can always consider judicial behaviour. This is not simply a decision that is made because the government of the day does not like the decision made by the court—whether it is a federal court or the High Court of Australia. It needs to be for misbehaviour under the Constitution. It is very important that all political parties and people in the general community understand what is going on.
The second bill, the Courts Legislation Amendment (Judicial Complaints) Bill 2012, amends the Family Law Act 1975, the Federal Court of Australia Act 1976, the Federal Magistrates Act 1999 and the Freedom of Information Act to put in place an apparatus or framework to assist the chief justices of the Federal Court and the Family Court and the Chief Federal Magistrate to manage complaints referred to them about judicial conduct within the courts. This non-statutory framework to be put in place, as proposed by this legislation, will improve the complaints processes and the way things have been handled.
It has been my experience in more than 20 years as a lawyer that, if you were unhappy with a judge, a federal magistrate, a state magistrate or whoever, you often wrote to the Law Society, the Bar Association or took further steps. For example, if you were involved in what we used to call a custody case and it was fairly urgent, and the federal magistrate or the Family Court judge had not handed down his or her decision for quite a considerable period of time, the parties were left in limbo and you complained, often the Chief Magistrate or the Chief Justice—perhaps when they were on circuit in, say, Brisbane, or they would make a fly-in trip up there—would have a quiet word with that particular judge and have a look at what was going on in relation to that particular complaint. These things were done behind the scenes—often very successfully, I must say.
Having complained on occasion during my legal career, I have to say that we put the Chief Magistrate or indeed the Chief Justice of the Family Court in those jurisdictions in a really difficult position. The reason for that is that you cannot find a more contentious jurisdiction than the family law jurisdiction, where people's property and parenting arrangements are so contentious on occasions. It was very easy for people to complain about the way one federal magistrate or Family Court judge might have dealt with the case, but you put the judicial officer at the apex of that court in a very difficult position. So putting in place a non-statutory framework for a complaints process is a worthy thing to do. It is likely to reduce the time a chief justice or chief federal magistrate needs to take in relation to this issue and put a bit of arm's length in the process.
These bills were looked at by a number of different parliamentary committees. This legislation was looked at in 2009 by the Senate Legal and Constitutional Affairs Committee, which held an inquiry into the Australian judicial system and the role of judges. There were about 16 recommendations made, the Australian government reported a response in 2010 and said that they would work through the Standing Committee of Attorneys-General in relation to those processes to look at some kind of national mechanism or framework for judicial complaints handling.
This matter has come before a couple of committees in this place. It came before the Senate Scrutiny of Bills Committee and also the House of Representatives Standing Committee on Social Policy and Legal Affairs, of which I am a member. We looked at these two pieces of legislation to see how they would operate. We noted a number of things. We were very concerned about any trespass on the rights and liberties of anyone about whom complaints were being made. The Senate Scrutiny of Bills Committee looked at a number of aspects of judicial complaints procedure and we talked about that in our report. The committee looked at the capacity of a judicial complaints commission to issue search warrants in relation to limited circumstances and on reasonable grounds and it looked at the commission being able to hold private meetings. It looked at the need for a person to be protected against self-incrimination and against producing documents or answering questions for fear of self-incrimination. Lastly, it looked at what sort of reasonable excuse a person should have if they do not want to appear as a witness, provide a document or thing or give evidence. These are all important things; they are not just esoteric things. If one of these things comes up it is the national headlines of the Australian or the Financial Review and it would be on every news channel. If this comes up it is really serious stuff.
Our committee conducted a public hearing on 10 May this year. I know that the Senate committee also conducted a public hearing and there is information on our committee website about it. A number of people gave evidence. The Attorney-General's Department gave evidence; we heard from the Federal Court of Australia and the Judicial Conference of Australia. A number of organisations gave evidence as did scholars from the Adelaide Law School and Civil Liberties Australia. Pretty high-profile organisations and individuals gave evidence. The committee report states at 1.33 in relation to the judicial complaints bill:
The Attorney-General's Department provides a distinction between the internal complaints process as described in the Judicial Complaints Bill and the parliamentary process of the Parliamentary Commission. They indicate that:
… provision was made for the costs of legal representation when a judicial officer is being investigated by a Parliamentary Commission in recognition that a judicial officer is subject to a parliamentary process by virtue of their constitutional standing as a Chapter III judge.
I think it is important that the person who has a complaint made against them has access to good legal representation and assistance in relation to costs. That is my personal view. But a number of people, including the Clerk of the Senate, raised issues in relation to the separation of powers. The committee concluded, and I concur with the conclusion, that the system we have had in this country has worked pretty well over a long time. That does not mean that we cannot put mechanisms in place to handle judicial complaints better and have that in place in case something comes up. Often we find that it is only when complaints are made that we realise we have not got the structures and the pathways in place. I am concerned, as the committee was, in relation to the prospect of potential political interference by a majority government that may feel they are not happy with a particular judge. But I think on balance the committee believed that the common sense of the Australian parliament and the reputation of the judiciary were such that these things would not happen. We note that the heads of jurisdiction are supportive of the policy and have been involved in the development of it, so the stakeholders have been consulted. The committee found, and I agree, that there are merits in these bills. I do not come to this and cast my vote without some reservations, but I think that, on balance, both bills should be supported. It is important that we do this right and properly, and if it ever comes up again we are to be criticised if we do not put in place the pathways, mechanisms and frameworks which are necessary to make sure that justice is done. The process needs to be accountable and transparent, and the people involved must have all the rights that all Australians would expect them to have.
I rise today to speak on the Courts Legislation Amendment (Judicial Complaints) Bill 2012 and the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012. This is a suite of bills designed to introduce greater transparency and accountability in the handling of complaints about judicial officers in the federal courts. At present, the only formal legislation dealing with judicial complaints is found in section 72 of the Constitution, which provides for removal by the Governor-General in Council, on an address from both houses of parliament requesting such removal on the ground of proved misbehaviour or incapacity. As has been mentioned earlier in the debate, this has been invoked on only one occasion and it was in the case of Lionel Murphy, who passed away before the process could be concluded.
The amendments are designed to provide formal processes and procedures that currently would likely be conducted in a similar way, albeit without explicit statutory guidance. These bills will create an independent, transparent and accountable framework by enabling the establishment of parliamentary commissions to investigate allegations referred to the parliament for consideration. While instances of removal of judges from office in Australia have been extremely rare, the coalition understands that it is important that a clear framework is in place in the event that judicial misbehaviour needs to be addressed. The coalition is satisfied with this suite of bills, as it provides a standard mechanism to assist the parliament in its consideration of removal of a judge or federal magistrate from office. However, we want to wait for the final report from the Senate Legal and Constitutional Committee on 13 July and reserve our right to make any necessary amendments following that report.
I recognise that the Courts Legislation Amendment (Judicial Complaints) Bill 2012 was developed in consultation with chief justices of the Federal Court and the Family Court and with the Chief Federal Magistrate. It is understandable that with the increasing size of the courts—some 80 judges and 62 magistrates—there is a perceived need to have in place a statutory structure for dealing with complaints and to ensure that participants in the process remain immune from follow-up lawsuits. I note that these amendments, combined with the judicial complaints bill, are designed to support a largely non-legislative framework to assist the chief justices of the Federal Court and the Family Court and the Chief Federal Magistrate to manage complaints that are referred to them. It is anticipated that the vast majority of complaints would be dealt with through this internal mechanism.
I have had, however, not many but some constituents who have raised the issue with me of decisions by officers of the court where an additional process for resolving a complaint about the behaviour of a judge or magistrate would have required the process that is being brought before the parliament today. As such, I, along with my coalition colleagues, cautiously welcome these amendments. One particular resident of the seat of Macquarie has faced ongoing challenges with a chief magistrate from the Family Court. At this point in time, as has been mentioned by members opposite, issues that need to be handled at the Family Court are indeed complex and there are relationships and complexity around those relationships that are brought to bear in any decision made by the court. This particular individual who was directly impacted upon raised concerns regarding judicial procedures and behaviours with the current and previous federal Attorney-Generals. I believe that the processes that are recommended today could potentially go some of the way to resolving the issues that were raised by the constituent. This person expressed frustration to a range of members and departments and, in her own words, continued to 'run into brick walls'. In one letter from the assistant secretary at the Federal Courts branch, she was advised of the following:
You have expressed the desirability of having a proper inquiry into the proceedings and the handling of your complaint. Judicial independence from the executive arm of government is provided under the Australian Constitution to ensure that disputes between people, and between people and governments, are resolved by judges who are impartial and not subject to improper control or pressure. Consistent with this independence, it would not be appropriate for the Attorney-General, as First Law Officer, or the Attorney-General's Department to undertake an inquiry into the way your proceedings have been handled.
While this is accurate and understandable, the procedures and the process recommended today will, hopefully, go some way to enabling the parliament to at arm's length appropriately review the behaviour of officers of the court where it is necessary to do so.
While the introduction of this bill will provide some relief for similar situations to the one I have highlighted above, I note three of the three concerns in the advisory report handed down by the House of Representatives Standing Committee on Social Policy and Legal Affairs. The first is the need to legislate. The coalition, with good reason, remains cautious of the government's instincts to overregulate, particularly with regard to industries, and of the instincts of Australian government departments to attach additional red tape where it may not be necessary. According to the advisory report handed down by the House of Representatives Standing Committee on Social Policy and Legal Affairs, the Law Council of Australia also voiced similar concerns, stating:
The Federal Courts have each established effective formal complaints handling mechanisms with usually the head of the jurisdiction being ultimately responsible for deciding the response to a complaint. The Law Council believes that these existing mechanisms of dealing with complaints have operated successfully.
While it is recognised that these amendments have been developed in consultation with the chief justices of the Federal Court and Family Court and the Chief Federal Magistrate, it would be beneficial for the Attorney-General to clarify to what extent the department considered the comments made by the Australian Law Council. These complaints echo the concerns voiced in 2001 at the Judicial Conference of Australia where Justice Drummond noted that a complaints system would be likely to encourage complaints where no judicial misconduct had occurred. The second issue to highlight with regard to these bills is that the High Court will remain exempt from the judicial procedure. In the second reading speech on 14 March this year, the Attorney-General stated:
This bill will not apply to the High Court.
That is because the High Court's position at the apex of the Australian judicial system means that it could be called upon to determine the validity of any structure established to handle judicial complaints.
While I accept that the High Court is at the apex, could the Attorney-General please explain how complaints against the High Court will be managed on the occasion that they arise, and will there be a formal process introduced with regard to this procedure? I understand that the submission from scholars at the University of Adelaide Law School raised similar concerns. In their submission, the scholars pointed out that the judicial complaints bill does not provide for the investigation of complaints against the head of the jurisdiction. The scholars consider, therefore, that 'the bill does not provide complete coverage'. I understand that the Attorney-General has responded to this by stating that, under section 72 of the Constitution, these complaints would be managed by the parliament. However, I reiterate the concerns of the scholars. Additional information is required, particularly with regard to how the formal process will ensure that complete coverage and consistency is achieved by the amendments.
The third and final issue that I wish to highlight, and which was highlighted in the advisory report, is with regard to the integrity and reputation of the judiciary. The House of Representatives committee highlighted that this integrity may be compromised by establishing a framework for a parliamentary commission to investigate possible misbehaviour or incapacity, meaning that an adverse finding against a single judge could leave the entire judiciary more vulnerable to criticism. A finding of incapacity might also have implications for previous rulings by that judge. In recent times, these types of situations have remained open to much media scrutiny or, as it is commonly known, trial by media. If the judiciary complaints mechanism as proposed by these bills finds that there is reasonable cause to believe that the complaint is unfounded, what will the implications be for the reputation of the judiciary member and the integrity of the judiciary process itself? The Attorney-General needs to clarify how the integrity of the judiciary will be retained under the mechanisms that are detailed in the amendments, specifically in the circumstances I detailed earlier on, at point 1, where it can be expected that there will be an increase in the number of complaints raised against the judiciary.
The coalition does not oppose these bills. However, we will wait for the final report from the Senate Legal and Constitutional Affairs Legislation Committee on 13 July. Given the concerns that I and others have raised, we reserve our right to make amendments if they are necessary. I commend the bills to the House.
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.
Mr Acting Deputy Speaker Adams, I thank you for the call. I observe simply that the member for Banks seems to understand that this may be a matter that I would have taken some interest in—and I have. I was added as a supplementary member to the committee that was asked to report on this matter and I had the opportunity to participate in its deliberations. I am probably not too far away from the member for Banks. He uttered the words: 'I am not keen on it'; nevertheless, he supports it. I would say that I have still to be persuaded that legislation of this type is necessary but that I do not oppose it.
I want to indicate why, having been the Attorney for four years and having considered some of these matters in a variety of circumstances, if I were still in that role I would not have been proposing this legislation. The reason is quite simple: I think we have an outstanding judiciary. That is not to say there may not be issues about which there is complaint from time to time; but they are so rare that it would worry me if we are putting in place mechanisms that are going to invite more complaints. Given my role as a local member of parliament, I think there are some areas of activity of our judiciary that have the potential to invite significant numbers of complaints from disgruntled litigants which do not go, in fact, to the quality of the decision making of our judiciary, whether they be in the High Court, the Federal Court, the Family Court or the federal magistracy. I sat in my office, as recently as last week, with two people quite separately coming to me to put their concerns about the outcome of the litigation in which they were involved. I heard only what they had to say, and I was being asked to form a view about the competency of the decision maker, because they disagreed with the judgment as it impacted upon them. I do not know any issues that generate more ferment among my constituents than family law issues.
Some of the evidence I have seen suggests that putting in place a mechanism through which you can complain about these matters, can be seen to complain about these matters or are perhaps invited to complain about the way in which the matter was adjudicated is likely to involve considerably more complaint. I may not be alone in that view. The committee in which I participated said it recommends the bill is passed without amendment. I would like to read some of the paragraphs of the committee's report because I think there is evidence of a degree of hesitancy. For example, paragraph 1.61 states:
The Committee is concerned that the reputation of the judiciary may be compromised by establishing a framework for a parliamentary commission to investigate possible misbehaviour or incapacity. An adverse finding against a single judge may leave the entire judiciary more vulnerable to criticism. A finding of incapacity may also have implications for previous rulings by that judge.
Paragraph 1.62 continues:
Another concern is potential political interference with the judiciary. The Committee understands that the establishment of a parliamentary commission requires a resolution from both houses of Parliament and the appointment of commission members is made by the Prime Minister in consultation with the Leader of the Opposition. Nonetheless, there remains the possibility of political interference by a strong government in the event of undesirable judicial decisions.
The committee goes on in paragraph 1.63:
Despite these concerns regarding the need for these bills and potential unintended consequences, the Committee is tasked with assessing the merits of the bills. In doing so, the Committee has considered the issues raised in consultation via its own inquiry and through that of the Senate Legal and Constitutional Affairs Committee and does not find that the bills warrant any amendments, and considers that they achieve their respective objectives.
I understand that one of our former colleagues had a very strong view on these matters. I think he drove the issue over a period of time and has influenced the government in its decision-making which has brought forward this legislation. I want to make it clear that in my view, while the legislation reflects in large part the way in which complaints are dealt with now without a legislative basis and the need for a legislative basis, there has not been any call for a measure like this from the heads of the jurisdictions of our courts. I say that because, while the heads of jurisdiction did not give evidence to the committee, we received advice on the government's consultations with them.
The words of Ms Glanville, when she appeared before the committee, were particularly interesting. I assume they were deliberate. The acting chair asked:
Where has the call for this change actually come from? And there is also the question Mr Ruddock was asking.
Ms Glanville replied:
Yes, we are happy to answer. It is government policy and, as I have said previously, the heads of jurisdiction are supportive of this policy and have been involved in the development of it.
Yes, they are supportive of the policy as the appropriate way forward, having to implement the government's policy that there would be legislation of this character. That is quite clear.
This has not come from the heads of jurisdiction saying that they have not been able, through the measures that are in place, to deal with these matters. My colleague quoted from the Law Council of Australia earlier. I thought the Law Council was particularly pointed in one of its early submissions on these matters on 30 April 2009:
The Federal Courts have each established effective informal complaints handling mechanisms with usually the head of the jurisdiction being ultimately responsible for deciding the response to a complaint. The Law Council believes that these existing mechanisms of dealing with complaints have operated successfully.
It goes on to speak about the nature of that:
The Federal Court, the Family Court, the Federal Magistrates Court have judicial complaints procedures which set out the procedure for dealing with complaints about Judges and Magistrates. The procedures recognize the constitutional limitations and safeguards with respect to such matters, and therefore do not provide a mechanism for disciplining a judge. The Chief Justice is nonetheless able to "advise, warn and take appropriate steps"…
I know from personal experience that these mechanisms have worked well.
I do not stand in the way of the legislation because the model, while in my view likely to generate a potentially greater number of complaints, reflects the model which has worked over a long period of time. The heads of jurisdiction will essentially receive those matters and deal with them, and that is appropriate. But I do not want the pursuit of these matters to be seen as in some way reflecting any dissatisfaction with the quality of our judicial system and our judges. I would hate to think that, having adopted this measure, we would see these matters pressed ad infinitum by people who perceive this to be an opportunity to open up another avenue for disputation that has been resolved. That would create enormous potential to bring the quality of our judiciary into question.
I want to finish my remarks today by inviting members' attention to some other arguments I saw in the paper that was prepared for us. It was essentially the view of elements of the judiciary about a parliamentary commission into judicial misconduct. The paper said:
This is an argument well put by Drummond J in a paper entitled "Do Courts Need a Complaints Department?"
That was published in the Bar review at page 11. The paper went on to say:
His Honour there expresses the view that, in these circumstances, a complaints system would be likely to encourage complaints where no judicial misconduct had occurred. His Honour further posits that not only is such a system unnecessary, but that "it verges on the irresponsible to urge the establishment of formal mechanisms for receiving and dealing with complaints about judges: the establishment of such mechanisms in an attempt to force the courts into the currently fashionable business model, when there is no justifiable need for such processes, can only help foster the false impression that there is something rotten in the judiciary."
I put these matters on the record only because I know that, as a matter of policy, this matter is being pursued by the government. I think that policy has arisen because of the fervent advocacy of one former member, not because of any dissatisfaction with our courts.
I recognise that the model proposed fairly closely replicates the system that has operated over time, and to that extent I think it is worthy. But I am concerned that there is the potential to damage the judiciary by pursuing a matter like this at a time when there is no substantial complaint, when there are no issues of substance that need to be pursued and knowing, as I do, about the propensity of people that I see in my electorate who are dissatisfied with an outcome—which is always the case with matters that have been taken to a court—and want to bring into question the very competency of the judicial officer, because it is the only avenue left, perhaps the only affordable avenue left, for them to bring these matters into question, by pushing them. Maybe in time I will be shown to be right in the way in which these matters unfold, but, for the sake of the reputation of our courts, which I hold so highly, I hope very much I am proven to be wrong.
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.
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.