Hon Judi Moylan

Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012, Courts Legislation Amendment (Judicial Complaints) Bill 2012- Second Reading

Mrs MOYLAN (Pearce) (18:41): I am pleased to have an opportunity to speak on the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 and the Courts Legislation Amendment (Judicial Complaints) Bill 2012 because earlier this year they came before the House of Representatives Standing Committee on Social Policy and Legal Affairs and I had a chance only to speak briefly to that inquiry at the time. A key element of Australia's separation of powers is an independent judiciary which enjoys a strong security of tenure. Removal of judicial officers is deliberately difficult, primarily to ensure that their decisions are not influenced by the threat of removal from office. But, as public officers, those appointed to the judiciary are expected to maintain the highest of standards. To reconcile these positions, the drafters of the Constitution settled on the amorphous phraseology in section 72 that removal is by a resolution passed by both houses of parliament, on the grounds of 'proven misbehaviour or incapacity'.

Constitutional scholars have since grappled with what constitutes 'proven' and 'misbehaviour' and the process through which these should be investigated. Also, with the expansion of the federal judiciary well beyond what was first contemplated under the Constitution, there is the difficult question of how complaints against officers of other courts are to be dealt with, particularly as referring these claims, many of which are vexatious, to the federal parliament would be extremely cumbersome.

These concerns were canvassed in a wide-ranging Senate inquiry by the Legal and Constitutional Affairs Committee, whose report Australia's Judicial System and the Role of Judges was tabled in 2009. A recommendation of that inquiry was to establish formal mechanisms dealing with complaints handling and investigation. The recommendation is the foundation of the two bills before this House—namely, the Courts Legislation Amendment (Judicial Complaints) Bill and the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill. Both bills have recently been the subject of inquiries by the House of Representatives Social Policy and Legal Affairs Committee, as well as the Senate Legal and Constitutional Affairs Committee. So the matters that are the subject of these bills have been well canvassed.

The first bill sets out an enabling framework to give legislative basis for the internal complaints-handling systems currently in use by most federal courts and to confirm their validity.

The current complaints-handling process of the Family Court was set out in the 2009 report of the Senate committee, and it is a useful guide to all federal complaints-handling processes. Broadly, the process is this: a designated complaints-handling adviser reviews all complaints that are sent into the Chief Justice; complaints regarding delays or the slow handing-down of judgements are referred to the Law Society, as that has traditionally been an area they investigate and provide counsel to the judiciary on; procedural complaints or complaints that outline potential grounds of appeal are immediately responded to, outlining that the grounds should be perused through the court process; and information is given regarding how to appeal decisions or make further applications.

The Family Court has found that many people incorrectly believe that the Chief Justice can personally intervene or overturn decisions without a hearing. Queries are responded to quickly, with the complaints officer advising people of their rights straightaway. The actual number of complaints alleging impropriety of judicial officers is low. They are initially reviewed by the complaints adviser, and a detailed response is drafted by the officer and then reviewed by the Deputy Chief Justice. If there is sufficient evidence or if the complaint is of a serious nature, the complaint may be further investigated by the Deputy Chief Judge or referred to a panel of judges superior to the justice the complaint has been made against. This ensures that vexatious complaints are weeded out and that all genuine concerns are dealt with in a transparent manner.

The judicial complaints bill sets out a legislative basis for such procedures, enshrining a flexible and efficient approach to dealing with the diversity of complaints received by courts. A full system cannot be mandated, as this could potentially conflict with the procedures under chapter III of the Constitution and, if challenged, could invalidate the whole complaints-handling process currently being utilised. I know from being involved with the Standing Committee on Social Policy and Legal Affairs that the committee found that the non-legislative system enabled by this bill has enough safeguards to ensure that legitimate complaints are not sidelined or stifled.

The second bill in this cognate debate, the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012, establishes a procedure for the investigation of alleged misbehaviour. Where allegations of misbehaviour arise, both houses of parliament would adopt a resolution to establish a commission of inquiry. Such an inquiry can investigate any federal judicial officer. It would consist of up to three officers appointed by the Prime Minister after consultation with the Leader of the Opposition. One member must be either a former federal judicial officer—this member cannot be a current federal judicial officer—or a current justice of a state or territory supreme court.

A concern which has been raised regarding such a commission is its inquisitorial style, which is similar to that of a select committee. The bills allow the commission to service warrants and compel witnesses to appear. However, the commission will not pass judgement on the individual. The commission's role is to investigate and report on the threshold question of whether there is evidence of misbehaviour or incapacity. The commission can be assisted by outside organisations such as the police or forensics officers where the commission deems it necessary. Whilst it is explicit that the role of the commission is only to help inform the parliament, there are legitimate questions of where that role ends and where such a commission starts along the path of making a decision about guilt. A particular problem may be encountered where a single piece of evidence which is in dispute would indicate potential misbehaviour. If the commission is called upon to make a decision as to the veracity of that information and ultimately decides that it is true, that is possibly a breach of their informing-only function and strays into the constitutionally-enshrined role of the parliament, which is to decide upon those matters.

Another ambiguous area relates to what actually constitutes misbehaviour. It is not defined in the Constitution; the drafters of the Constitution deliberately left this open to interpretation as they realised that what constitutes misbehaviour would change with the times and could also be dependent upon the circumstances of allegation. Whilst the commission can act as an effective evidence-gatherer, it will suffer the deficiency of not knowing exactly what standard it is applying as it investigates. This may result in difficulties, but, as it stems from the Constitution, resolving the definition cannot be remedied in this bill.

Another concern about this bill is a fundamental aspect of our democracy: the separation of powers. This is the idea that power should be divided between the executive, the legislature and the judiciary so that no one branch of government can hold too much power. Constitutionally the power to remove a judicial officer lies with the parliament to ensure that the executive does not interfere with decisions by threatening to remove the judicial officer, but the proposal to allow a judicial officer on the commission does raise the question of whether it will simply be a matter of the judiciary investigating itself, which is not consistent with the doctrine of the separation of powers.

Further, no guidance is given as to whom the second two officers of the commission should be, and it appears likely that they too will be drawn from the legal profession. As legal or investigative professionals, their experience in determining complex legal questions would be invaluable to help steer the commission through the tricky constitutional issues that such a commission presents; but it may also present a suggestion of bias, as it will appear that the profession is investigating itself. These concerns have led some commentators to suggest that a standing provision for a commission is unnecessary and possibly undesirable. The Law Council of Australia, in its submission to the 2009 Senate inquiry, noted:

It appears that the community's perception of judicial accountability now demands that there should be a procedure enshrined for receiving and investigating complaints against the judiciary. The Law Council believes the existing procedures adopted by the courts perform this function adequately, without incurring unnecessary cost or diverting judicial resources …

There is also argument that the parliament should be allowed the flexibility to respond to the unique circumstances of each case and determine the most appropriate investigation mechanism.

But the Hon. Duncan Kerr SC, in his submission to the 2009 inquiry, noted that:

Any ad hoc procedure put in place after a specific allegation of judicial misconduct or incapacity has been brought to light can, and almost certainly will, be criticised as lacking at least some of the institutional attributes appropriate for a fair hearing and respect for the rule of law.

But through this legislation, with a standing procedure in place, should any allegation arise there would be more confidence in the due process as it will already be known.

In conclusion, while there is merit in all the concerns raised by these bills, there is also good reason to have in place a standing procedure should the need arise. The powers of such a commission are necessarily broad to ensure confidence in the judiciary through a thorough and transparent investigation process. Whilst that fact-finding role may come under scrutiny as to whether it digresses into making a determination of guilt, in the end the final power lies with the parliament to remove a judicial officer from office. And, as the member for Isaacs pointed out in his speech just now, this is a power that, thankfully, has rarely had to be used in this place. Although others have pointed out that the removal of a judicial officer is reasonably rare, it is recognised that, when such an occasion arises, there is a need for an enabling framework and that that enabling framework should be given a statutory basis, and that is what these bills seek to do.

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