Nicola Roxon (Gellibrand, Australian Labor Party, Attorney-General) Share this | Hansard source

I thank members for their contributions to this debate. I also thank the House Standing Committee on Social Policy and Legal Affairs for its advisory report, and for its work considering these bills, in which it recommended that the House pass the bills unamended. I also thank the Senate Standing Committee on Legal and Constitutional Affairs for its advisory report and recommendations.

The Courts Legislation Amendment (Judicial Complaints) Bill and the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill are both important reforms to ensure that complaints against federal judicial officers are handled fairly and transparently in a manner consistent with the constitutional independence of the judiciary. These bills also form an important component of this government's wider court reforms, which will ensure that the federal judicial system provides accessible, equitable and understandable justice for the community.

The Gillard Labor government has acted to ensure that our courts are able to serve individual one-off complainants to the same level that large corporate players enjoy. For example, earlier today I announced changes to court fee structures and a funding increase to the federal courts of $38 million over four years so that our courts can deliver key services, including regional circuit work, which is vital for disadvantaged litigants and small businesses.

Our courts deal with complex and difficult matters every day, and court users have the right to expect that they will be treated fairly and impartially, with their legal rights protected and with matters dealt with quickly and thoroughly. The bills support and augment existing complaints pathways, both within the federal courts and before the houses of parliament, in the rare even of a serious complaint being considered under section 72(ii) of the Constitution. The seriousness and nature of complaints may vary widely, and together these bills provide a range of options for the way complaints about judicial officers may be appropriately handled. This legislation will serve to strengthen the community's confidence in our courts and our judiciary by ensuring that these complaints processes are fair, robust and transparent.

I want to turn to some specific comments raised by honourable members. People have raised similar issues in this debate, so forgive me if I do not identify each member. Earlier on, the member for Berowra and the member for Macquarie queried the need for this legislation. I want to recognise that there has not been a serious complaint warranting parliament's consideration for several decades, and I think that is a good thing. It means that Australia's courts are held in the highest regard and that our judiciary take very seriously the responsibility entrusted to them as holders of judicial office. Despite this, circumstances giving rise to a referral of an allegation to parliament are unpredictable and could occur at any time. A number of members mentioned this. And of course a number of honourable members in this debate mentioned the circumstances relating to the late Justice Murphy in the 1980s and highlighted the uncertainty about how serious complaints about judges could be fairly and appropriately investigated by the Commonwealth parliament.

A very attractive feature of these bills is that they are pre-emptive. They provide a framework that is capable of withstanding any criticism that it may lack objectivity or is politically driven precisely because its constitutional, procedural and governance arrangements have been determined in the absence of an existing allegation. Having a framework in place would mean that any future allegation could be investigated expeditiously and competently and would preserve public confidence that a future process being undertaken by the parliament is fair, objective and apolitical.

Other members expressed concerns that the mechanisms in these bills might invite unmeritorious complaints, especially in the family law context. But I note that these measures are moderate and carefully framed. They allow complaints handling to be tailored to the circumstances of each individual case. For example, a head of jurisdiction may summarily dismiss an unmeritorious complaint if it is appropriate to do so. Independently of the processes outlined in the parliamentary commissions bill, parliament has the ability to deal with unmeritorious complaints appropriately and at an early stage. As the Clerk of the Senate stated during the Senate Standing Committee on Legal and Constitutional Affairs hearing into the bills earlier this year, the houses of parliament are well capable of exercising their constitutional duties; they do it every day. As representatives of the people, they represent the highest source of authority in our system of government. That is why, if a serious complaint against a judge were brought before the parliament for consideration, I am confident that the parliament would fully comprehend the gravity of its constitutional role. It would consider the complaint on the evidence and not be coloured by any purely political considerations.

The member for Macquarie also asked me to advise what the procedure would be for complaints about justices of the High Court. The parliamentary commissions bill applies to the High Court as it does for all federal courts. If a serious complaint is made against the conduct or capacity of a High Court justice, it is entirely appropriate for parliament to consider the need to establish a commission to inquire into that conduct to aid the parliament's consideration.

In contrast, though, it is not appropriate for the judicial complaints bill to apply to the High Court, due to its position in the Australian judicial system. The role of the Chief Justice of the High Court is constitutionally described and is characterised differently from that of heads of jurisdiction of other federal courts. Given the court's position and the Chief Justice's defined role, he or she would not be in a position to establish a conduct committee to investigate allegations without the involvement of the parliament. Others asked me to advise whether strengthening complaints mechanisms might affect the reputation of the judiciary, but it is this government's view that clear, appropriate and effective complaints mechanisms will actually support public confidence in the federal judiciary and its continuing high reputation.

The member for Banks raised the importance of respect for the separation of powers and the non-politicisation of parliament's constitutional role. The parliamentary commissions bill will not replace or interfere with parliament's power or take away the parliament's role in determining whether conduct of a judicial officer amounted to prove misbehaviour or incapacity. The commission would simply investigate an allegation about a Commonwealth judicial officer and provide its findings and evidence to the parliament for its consideration.

It also provides a useful tool that parliament may employ to avoid potential politicisation of a complaint. The bill therefore reflects the importance of a non-political approach to parliament's role in the nomination process for members of the commission. Members of the commission would be appointed on nomination by the Prime Minister following consultation with the Leader of the Opposition. Although each member has not been identified, that has raised the range of issues that were put forward in the debate.

These bills represent important reforms to the federal judicial complaints handling process. The reforms have a long history which has been informed by reflection and consultation with the judiciary, academia and legal research bodies, as well as within government and parliament over the course of the years. I particularly acknowledge the Honourable Duncan Kerr—formerly a member of this parliament, formerly a minister and formerly Attorney-General and now President of the AAT and a Federal Court judge—for his work developing many of the proposals that now appear in this legislation. The bills have been developed taking into account this accumulated history and in close consultation with the federal courts to ensure they appropriately meet the expectations of the community, the courts and individual justices who may be the subject of a complaint.

Policy development in the area of judicial complaints is undoubtedly complex. Reforms need to balance the need to support the independence, impartiality and integrity of the judiciary against a reasonable community expectation of judicial accountability. Again, I need to emphasise how incredibly well served Australia is and has been by its judiciary. Some might consider that the current system of managing complaints continues to serve us well, while others might contend the reforms should go further. I am confident that the government has struck the right balance in its judicial complaints reforms. The reforms achieve real and meaningful advances, for example, in providing for serious complaints to be considered by conduct committees in the courts and parliamentary commissions in the parliament, but all the while the reforms are respectful of the bedrock constitutional principle of the separation of powers between the judiciary and the other arms of government. I commend the bills to the House.

Question agreed to.

Bill read a second time.

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