Philip Ruddock (Berowra, Liberal Party, Shadow Cabinet Secretary) Share this | Hansard source

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.

See this speech in context