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

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.

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