Dear Mrs Irwin

I refer to your letter dated 18 March 2009 seeking a written response to a petition submitted to your Committee regarding a Section 72(ii) process under the Constitution.

Section 72(ii) of the Constitution provides that the Justices of the High Court and of the other courts created by the Parliament shall not be removed except by the Governor-General in Council, on an address from both Houses of Parliament in the same session, asking for such removal on the ground of proved misbehaviour or incapacity. The proceedings are exceptionally serious. No Commonwealth judicial officer has ever been dismissed under this provision.

The basis on which this petition has been put forward is not clear. Taking into account the seriousness of the allegations made, considerably more information would need to be provided before the applicability of the provision could be considered.

I trust this information is of assistance to the Committee.

from the Attorney-General, Mr McClelland

Dear Mrs Irwin

I refer to your letter dated 18 March 2009 seeking a written response to petitions submitted to your Committee regarding complaints of judicial conduct and difficulties faced by self-represented litigants.

In relation to the petition concerning judicial conduct, I note that a working group established by the Standing Committee of Attorneys-General is considering a range of options for implementing a national mechanism for handling complaints against judicial officers, including the adoption of a consistent set of rules, procedures and standards and an appropriate complaints handling body. The working group’s recommendations will assist with the Government’s consideration of these issues.

In relation to the petitioner’s allegation that there is a lack of accountability for judicial officers, I note that important mechanisms for ensuring judicial accountability include the appeals process, open courts, procedural fairness, the provision by courts of reasons for decisions, the existence of publicly available complaints mechanisms within the courts and public and media scrutiny.

In relation to the petition concerning self-represented litigants and McKenzie friends, I note that courts have an inherent power to permit McKenzie friends to appear. A McKenzie friend is a person who assists a litigant during proceedings but is not legally qualified. Leave to permit appearance by McKenzie friends is at the discretion of the individual Judge or Federal Magistrate, and will only be granted in exceptional circumstances. The reason for this is that courts should be assisted either by parties who are familiar with their own case or qualified legal practitioners who can make informed submissions to assist the court. In addition, legal practitioners have ethical duties both to their clients and to the court, while unqualified persons do not have these duties.

Parties who may have difficulty affording legal representation may seek assistance from a Legal Aid Commission office in their State or Territory, which will, I understand, grant a first interview regardless of means. Parties may also seek assistance from local Community Legal Services.

I hope this information is of assistance to the Committee.

from the Attorney-General, Mr McClelland