Tuesday, 6 October 2020
Judges' Pensions Amendment (Pension Not Payable for Misconduct) Bill 2020; Second Reading
That this bill be now read a second time.
I seek leave to table an explanatory memorandum relating to the bill.
I table an explanatory memorandum, and I seek leave to have the second reading speech incorporated in Hansard.
The speech read as follows—
This Bill is to address an important deficiency in the Judges' Pensions Act 1968.
We are all now too aware that some industries enable predatory behaviour by those holding positions of rank and power. We are also aware that reports and evidence of wrongdoing and unconscionable behaviour are all too often dismissed or suppressed, and may only come to light long after the event but while the related damage and hurt are still sorely felt.
The ME-TOO movement has shone new light on widespread sexual harassment and sexual abuse, firstly in the entertainment industry and then across various other professions and workplaces. It seems that no profession is untouched – and that includes the legal profession, and indeed one of Australia's most preeminent institutions – the High Court of Australia.
I acknowledge the courage and thank the current High Court Chief Justice, Susan Kiefel, who undertook an investigation very promptly after it was brought to her attention that former Justice Dyson Heydon, while on the High Court bench, sexually harassed a number of associates.
The investigation initiated by the Chief Justice, and carried out by a former Inspector-General of Intelligence and Security, Dr Vivienne Thom, found that six associates were sexually harassed. Two additional allegations were also brought to light.
The Chief Justice made the following comments in relation to the findings of Dr Thom's inquiry:
" The findings are of extreme concern to me, my fellow Justices, our Chief Executive and the staff of the Court. We ' re ashamed that this could have happened at the High Court of Australia We have made a sincere apology to the six women whose complaints were borne out. We know it would have been difficult to come forward. Their accounts of their experiences at the time have been believed. "
After indicating that the Court accepted and was implementing various recommendations made by Dr Thom, the Chief Justice went on to say:
" We have moved to do all we can to make sure the experiences of these women will not be repeated. There is no place for sexual harassment in any workplace. We have strengthened our policies and training to make clear the importance of a respectful workplace at the Court and we have made sure there is both support and confidential avenues for complaint if anything like this were to happen again. "
The Chief Justice's response is to be commended.
However, it is still most concerning that it appears that earlier complaints made by associates fell on deaf ears. It was well known that Justice Heydon was a bit off, that he had a track record of poor and inappropriate behaviour, indeed of sexual harassment, and it was best that young women, or indeed women of any age, were not left alone in his company.
The former judge is now retired. He has denied the findings that he harassed associates and has offered an apology for what he describes as any "inadvertent and unintended" offence.
He reportedly did not apply to renew his legal practising certificate with the New South Wales Bar Association upon its expiry on 30 June this year.
High Court Judges are entitled to a taxpayer funded pension on their retirement.
This is paid at approximately 60% of the appropriate judicial salary.
This is quite a significant sum – the Chief Justice of the High Court earns $608,150 with other High Court Judges earning $551,880.
Now 60% of $551,880 is $331,128 per year – this is what Justice Heydon is currently receiving.
He is entitled to receive this because he is untouchable – his pension is guaranteed and is absolutely safe just because of the fact that he is retired and beyond the reach of the Judges' Pensions Act 1968.
Let's just imagine that the High Court took seriously those earlier complaints of sexual misconduct – the indecent assaults and sexual harassment – complaints that were apparently first raised while the Judge was still sitting on the High Court bench.
Section 72 of the Constitution provides that Justices of the High Court and other courts created by the Parliament may be removed by the "Governor-General in Council upon an address from both Houses of the Parliament in the same session, praying for such removal on the ground of 'proved misbehaviour or incapacity."
Had the complaints made been acted upon while Justice Heydon was still on the bench, and an inquiry conducted and findings made similar to those arrived at after the Judge's retirement, there would have been a real likelihood that Parliament would have passed motions seeking his removal from the Bench. His taxpayer-funded life pension would have then been forfeited as a consequence of section 17 of the Judges' Pensions Act.
But that didn't happen. Instead, Justice Heydon's career went along unimpeded and unhindered until he retired – leaving behind a trail of destroyed dreams of junior lawyers and associates he assaulted. And because of the fact that he is now retired – the Act is powerless to impose any penalty on him for actions committed while a Judge.
The Act currently only applies to judges currently holding positions on the bench which means that retired Judges are able to escape the consequences of aberrant behaviour while they were on the bench. Or worse yet, retire when they get wind that allegations may be proved against them and that the Governor-General may make a direction that would remove them from the Bench and consequently deprive them of access to a generous tax-payer funded pension.
This Bill will address this significant deficiency in the accountability regime for Commonwealth judicial officers.
This Bill will impose on a retired Judge the same consequence for misbehaviour they would experience were they still be sitting and then removed from the Bench under section 72 of the Constitution.
As the Judges' Pensions Act is currently framed, there is an inequality between the outcomes for behaviour between a current sitting Judge and that of a retired Judge where their behaviour only comes to light after their retirement. At the very least this legislative loophole creates a perception that there is an incentive for the Judiciary to ensure that any misbehaviour goes unaddressed or is kept hidden during their tenure so as to safeguard their position until retirement and thereby protect their pension.
The Bill is consequently retrospective in operation for the purpose of ensuring past Judges are held accountable for any serious misconduct done while they held their position and that only becomes apparent after their retirement or departure from the Bench. This reform will ensure equality so that all Judges and living former judges that committed misconduct will be held accountable and face the same consequences no matter if they are on the Bench or no longer on the Bench.
It will of course be a matter for the Parliament to determine its response in relation to any allegations or findings concerning misbehaviour that arise after a judge has retired.
The provisions of the Bill will appropriately only apply to living former Judges, as a deceased person is unable to respond in any forum to allegations or findings of misbehaviour. Consequently there is no potential impact in relation to pensions payable to the spouse of a deceased Judge.
The ability for a person, let alone a Judge of the High Court, to avoid the consequences of misbehaviour by the simple happenstance that it was only uncovered post retirement is grossly unfair, especially when they are in receipt of a taxpayer funded statutory pension for life. This is an obvious legal and ethical anomaly that this Bill will remedy.
I commend the Bill and the related Explanatory Memorandum to the Senate.
I seek leave to continue my remarks later.
Leave granted; debate adjourned.