Craig Kelly (Hughes, Liberal Party) Share this | Hansard source

This evening I continue, from 28 June, my comments on the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 and the Courts Legislation Amendment (Judicial Complaints) Bill 2012. The purpose of these bills is to provide a mechanism to assist the parliament in its consideration of the removal from office of a judge or federal magistrate. The bills will allow for the establishment of a parliamentary commission, in the event a resolution is passed by each house of parliament, to investigate a specific allegation about a specific Commonwealth judicial officer or federal magistrate. The commission is to investigate the allegation and report to the houses of parliament on whether there is evidence that would let parliament conclude that the alleged misbehaviour or incapacity is proved. The legislation attempts to maintain the important balance between judicial independence and judicial accountability.

We would all like to think that our judges possess integrity, impartiality, a strong sense of fairness and a willingness to put aside any existing prejudice when sitting on the bench. But our Constitution correctly recognises that judges are human. Given that our judges are not appointed, nor required to seek reappointment by popular election—as they are in the USA—our Constitution provides a mechanism for the houses of parliament to remove a judge from office. However, recent experiences of allegations of misconduct on the part of judges, although extremely rare, have demonstrated that current arrangements for parliament to remove a judge from office are inadequate.

Sir Anthony Mason, formerly Chief Justice of Australia, noted:

The central element of judicial independence is the freedom of the judge to hear and decide cases without interference and uninfluenced by an outsider—be it government, pressure groups or anyone else. The purpose of that independence, it should be emphasised, is to serve as a protection and a privilege of the people, not of the judges.

These comments remind us that we live in a democracy and that the authority of judge s ultimately arises from the public and, t herefore , our judiciary must be representative of society and ultimately accountable to th at public. This is reflected by our concept of trial by jury, in which a panel of jurors is regarded as representative of the community and is therefore deemed to speak with the voice of authority on community standards. A lthough judicial independence is a central pillar of the rule of law, equally important is judicial accountability . T herefore , in a democracy , we rightfully expect our judges to apply community standards.

J udicial independence does not mean that our judges are above criticism for decisions which potentially have, or which are potentially a ffected by , political implications and media pressures. N owhere is this more importan t that in our family law courts, where j udges are required to exercise a variety of judicial discretions. As a member of parliament, arising out of cases I have had constituents speak to me about, I have great concern about many decisions made in our family law courts, especially in those cases where judges contract out the decision-making process to a so-called 'single expert' who is unaccountable to anybody. We must have concerns when we read Family Court decisions such as the one in which one parent had been previously convicted of three child pornography offences, had invited one of his daughters into his bed and, according to the judge, had:

… demonstrated affection toward her in a way that was, in all the circumstances, inappropriate for a child of that age …

Yet that same court still ordered those two young girls to spend weekends with their sex offender parent, provided he put doors they could lock on their bedrooms. The judge stated that the girls 'needed some protection, particularly at night', but said the risk of sexual abuse was 'diminished when they are awake and alert and when the children are together'. When we see decisions like this, we can question whether our family law courts are applying community standards.

Although it is important that we strengthen the mechanisms for accountability to ensure that our judges continue to decide cases fairly, fearlessly and impartially, there are some concerns with this legislation which will only be tested when next a parliament is required to consider a serious complaint about a federal judicial officer and faces the procedural high bar for the establishment of a commission—the requirement that both houses of parliament agree to do so in the same session. We would be better served if the federal government were to establish a federal judicial commission modelled on the Judicial Commission of New South Wales. The coalition does not oppose the legislation.

See this speech in context