Mark Dreyfus (Isaacs, Australian Labor Party, Cabinet Secretary) Share this | Hansard source

Australia is very well served by its judiciary. Removal from judicial office for misconduct has been very rare. There were a few colourful instances of removal of judges of superior courts in the 19th century but, since the adoption of our Constitution in 1900, no federal judges have been removed. In fact, only one judge has been dismissed from a superior court—that is, from a state supreme court—and that was Angelo Vasta. He was dismissed from the Supreme Court of Queensland in 1989.

The constitutional provision to which the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 and the Courts Legislation Amendment (Judicial Complaints) Bill 2012 relate is section 72 of the Australian Constitution. There are no detailed provisions in the Constitution which deal directly with the discipline of judges, but section 72 says:

The Justices of the High Court and of the other courts created by the Parliament:

(i) shall be appointed by the Governor-General in Council;

(ii) shall not be removed except by the Governor-General in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity;

(iii) shall receive such remuneration as the Parliament may fix; but the remuneration shall not be diminished during their continuance in office.

Originally, the justices of the High Court and of other federal courts were appointed for life. But, as a result of a constitutional amendment in 1977, the last occasion we had a successful referendum in this country, a maximum age of 70 has been fixed for federal judges.

The Constitution having indicated that it is a matter for this parliament to remove judges from office for misconduct, we have not, up until now, had any standing arrangement for receiving, investigating or determining complaints of misconduct, corruption or similar conduct on the part of federal judicial officers.

There are a range of mechanisms that might be adopted. People wishing to make a complaint could write to the federal Attorney-General, to members of parliament, to the chief judge or chief magistrate of a particular court; they could raise it in the media or with non-governmental organisations—but there is no clear system provided for the handling of such complaints. What these two bills seek to do is regularise a system, a transparent system at that, for handling complaints against the judiciary.

A couple of events might be said to have provided the impetus for this legislation. The first worth mentioning is when complaints of misconduct were made against Justice Lionel Murphy as a judge of the High Court of Australia. I do not think I need to go through the tortuous history of the multiple parliamentary inquiries—both Senate and other—or the multiple trials that took place in New South Wales in 1985, but it is worth mentioning that, ultimately, what was an ad hoc parliamentary commission of inquiry was established by special legislation to investigate the 42 allegations that were made against Justice Murphy. It was a commission that comprised three retired judges. In July 1986, the commission determined that 28 of the allegations against Justice Murphy were completely lacking in substance but decided that it would go on to investigate the remaining 14 allegations. Then, tragically, it was discovered that Justice Murphy was in fact dying of incurable cancer. He returned to the High Court to sit for one week. The commission halted its work, and subsequently the statute under which that parliamentary commission of inquiry had been established was repealed. Justice Murphy died in October 1986. We will never know how the commission would have gone on to deal with those allegations. However, the ad hoc nature of the inquiry was criticised, and that can be seen to have provided some of the impetus here to establish a regular system, one that is known in advance—not one that is devised in the heat of some political controversy but, rather, an established system, so people know what will happen when a complaint is made against a federal judge and needs to be investigated.

Equally, the events surrounding the removal of then Justice Angelo Vasta from the Supreme Court of Queensland, because of the manner in which they unfolded, demonstrate the usefulness of having an established procedure. Angelo Vasta was removed under a constitutional provision similar to that which is found in the federal Constitution, following the vote of the single house of the Queensland parliament. That vote was taken after a debate, after hearing from Angelo Vasta in his own defence and after the report of a commission of inquiry established by the Queensland government and headed up by a former Chief Justice of the High Court of Australia, the Rt Hon. Sir Harry Gibbs. The inquiry was lengthy, going for three months, with a large volume of evidence. It looked at a whole range of allegations that had come to light during the Fitzgerald inquiry, partly as a result of the diaries of Sir Terence Lewis, the then Queensland police commissioner, who was one of the primary focuses of the Fitzgerald inquiry.

The commission of inquiry chaired by Sir Harry Gibbs looked at those allegations, which included the involvement of Angelo Vasta in a family trust company, a toilet paper manufacturing company. There was evidence given about a mysterious Sicilian benefactor, a very generous brother-in-law, a beachfront Gold Coast unit, overseas trips and a range of luxurious German cars. The inquiry went on to find that Angelo Vasta, along with Cosco Holdings Pty Ltd, the makers of the toilet paper, had misled the tax office—to their respective and sometimes mutual advantage—and that Justice Vasta was an unreliable witness. The inquiry chaired by Sir Harry Gibbs ultimately found—and I stress that these were not allegations of misconduct in relation to decisions that Justice Vasta had made in court; rather, they were allegations of misconduct more generally—that Angelo Vasta had committed an act of misconduct, and the state parliament then voted in favour of his removal, on 7 June 1989.

Again, as was the case when Justice Murphy was the subject of complaints never resolved, after the dismissal of Angelo Vasta from the Supreme Court of Queensland there followed a range of criticisms of the procedures that had been followed. They focused on the role of the parliament and the role of the commission of inquiry. There was criticism of the Queensland government's failure to pay the legal costs that Angelo Vasta had incurred in defending himself and his office. But the focus was on the absence of a procedure that people knew in advance would be followed in the event of a judge being the subject of a complaint of misconduct that might lead to their removal from court.

The two bills that are before the House build on work done by the Hon. Duncan Kerr as a private member. When he was member for Denison in February 2010 he brought before this House a private member's bill called the Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill 2010. It was not ultimately proceeded with before the last election but was something Duncan Kerr had pursued with tremendous vigour because he saw the need to legislate in this area, to provide, as I have indicated, a clear procedure which was going to be available in the event—and it is acknowledged by everybody participating in this debate and it is acknowledged by people who have publicly commented that we do not expect these provisions to be invoked at all frequently. Indeed, the history of a near complete lack of judicial misbehaviour leading to dismissal would suggest that these provisions are likely to be used extremely infrequently. Nevertheless, it is helpful that there be a clear framework in place.

This parliamentary commission bill is going to provide for the establishment, as needed, of a commission. It will not be a standing commission; it will be a commission established following the making of specified allegations of misbehaviour or incapacity of a particular Commonwealth judicial officer. It would be available to inquire into the conduct of any federal judicial officer, including a justice of the High Court of Australia. It would comprise the three members appointed by force of the bill on the resolution of the houses of parliament.

It is intended that the process to be followed by this commission would, on every occasion, be as bipartisan as possible. Two members, including the presiding member, would be appointed on the nomination of the Prime Minister and one would be appointed on the nomination of the Leader of the Opposition in the House of Representatives, and at least one member will need to be either a former Commonwealth judicial officer or a current or former judge of a supreme court of a state or territory. No current Commonwealth judicial officer would be eligible to be a member of the commission.

The commission would investigate the allegation, or allegations, and report to the parliament its opinion of whether or not there is evidence that would let the houses of parliament conclude that the alleged misbehaviour or incapacity is proved. It needs to be stressed that, under the bill, the role of the commission would be to inquire into allegations and gather information and evidence so that, in the very rare event that the parliament needs to make a decision, it can be well-informed in its consideration of the removal of a judge from office.

The processes to be followed are set out in the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012. The commission would have investigative and inquiry powers, including the power to summon witnesses, take evidence on oath, conduct hearings in private, require the production of documents and issue search warrants. The commission will provide a report to the houses of parliament through each of the parliamentary providing offices.

The accompanying bill, the Courts Legislation Amendment (Judicial Complaints) Bill, will support the implementation of a largely non-statutory reform framework to assist heads of jurisdiction, other than the High Court, to manage complaints about judicial conduct which are referred to them. Again, it is going to be a transparent process. Australians will be able to see how complaints are to be handled and how, if there is any suggestion that a judge needs to be removed, that will be dealt with by this parliament through the means of the appointment of a commission.

I commend both these pieces of legislation to the House and note again the helpful work on which this is based, being the work done by Duncan Kerr as a backbencher in this parliament in 2009 and 2010.

See this speech in context