Judi Moylan (Pearce, Liberal Party) Share this | Hansard source

by leave—First, may I say that I concur with the comments that the member for Moreton has just made in thanking the secretariat for their work given the extraordinary workload that this committee has now been charged with. I also thank the father of the House, the member for Berowra, for his contribution and long experience in this place on this particular matter. As the member for Moreton said, he became a member of this committee for the duration of this inquiry.

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 the 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. 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 a difficult question of how complaints against officers are to be dealt with, particularly as referring these claims, many of which are vexatious, to the federal parliament would be extremely cumbersome.

The concerns were canvassed in a wide ranging Senate inquiry by the Senate Standing Committee on Legal and Constitutional Affairs entitled Australia's Judicial System and the Role of Judges, 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 inquired into by this committee, namely, the Courts Legislation Amendment (Judicial Complaints) Bill 2012 and the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012.

The first bill sets out an enabling framework where the principal judicial officer, such as the chief justice of the particular court, determines in-house whether a claim has initial merit. This is in line with standard procedures across government for an internal examination before deciding on any further action. A full system cannot be legislated, as this could potentially conflict with the procedures under chapter 3 of the Constitution and, if challenged, could invalidate the whole system, but the committee was satisfied that the non-legislative system enabled by this bill has enough safeguards to ensure legitimate complaints are not sidelined or stifled.

The second bill establishes a procedure for the investigation of alleged misbehaviour. Specifically, it allows for a parliamentary commission consisting of at least one former or current federal or state judge and two other officers, appointed by the Prime Minister after consultation with the Leader of the Opposition. This commission has wide ranging powers to collect evidence and hear from witnesses. The proposed system reflects similar procedures established, but later repealed, during the investigations of the former High Court judge Lionel Murphy in 1986.

Concern was raised during hearings regarding the wide ranging investigative powers of the commission, the ambiguity over the role of the commission to either 'advise or 'compile' information to present to the parliament and the potential for political interference. Further, as allegations of misbehaviour against the judiciary are extremely rare, the committee queried the need for this legislation. As in the case of Justice Murphy, ad hoc provisions could be just as useful as a standing legislative process. Regardless, the committee did not see this as enough to warrant dissention against the bill and has therefore recommended both bills be passed without amendment. I commend the advisory report to the House.

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