George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Hansard source

I rise as shadow Attorney-General to make a few observations in relation to the report of the Senate Legal and Constitutional Affairs References Committee entitled Australia’s judicial system and the role of judges. In doing so, I commend in particular the work of Senator Barnett, who, as I know better than most, has been pursuing this matter with great tenacity and deep knowledge for a very long time—since he has been a senator—and the fruit of his pursuit of this issue is largely now embodied in this report. I have not yet had the opportunity to read the report in full but, having examined the recommendations and some of the discussion in this report. it seems to me that this will become one of the most important reports that the Legal and Constitutional Affairs References Committee has produced for a very long time—and I think Senator Barnett can take considerable credit for the outcome.

The opposition, as it finalises its policies in relation to the area of the reform of the judiciary going into the 2010 election, will look very, very carefully at the recommendations contained in this report. I just want to make some particular observations on one matter, and that is the question of judicial exchange, the relationships between the federal and state judiciaries and the question of the development of a national judiciary. I do that particularly informed by the fact that, last night in Sydney, the Chief Justice of New South Wales, Justice Spigelman, gave a very important speech in which he called for the creation of a nationally integrated judiciary. That is an issue that was addressed by the committee, and the committee was influenced in particular by an important paper given by the current Chief Justice of Australia, Chief Justice French, when he was a member of the Federal Court, at the 2004 Colloquium of the Judicial Conference of Australia. The paper was called ‘Judicial exchange: the courts’. The committee was very attracted to Justice French’s suggestion that there should be regular exchange between state and federal judicial officers, at equivalent or near to equivalent levels, so that they might hold, in effect, reciprocal temporary commissions in one another’s courts so that the objective of fostering a more unified national outlook among judges sitting on both the federal and state jurisdictions would be furthered. That would most particularly occur in the process of exchange between state supreme courts and the Federal Court.

In the paper which so influenced the committee, Chief Justice French—or Justice French, as His Honour was then—called for:

… a comprehensive system of horizontal and vertical judicial exchanges throughout Australia with a view to advancing:

1. Individual judicial performance.

2. The performance of the courts as institutions.

3. Allocation of national judicial resources to areas of local need including the need for specific expertise.

4. The attractiveness of judicial appointments in all jurisdictions.

5. Consistent Australia-wide approaches to the administration of justice while maintaining healthy institutional pluralism.

6. National collegiality between Australian judges.

I pause to say that the cause of the development of collegiality between Australian judges has itself been much advanced by the work of Chief Justice French and others through the Judicial Conference of Australia. But I want to make the point—particularly in view of what Chief Justice Spigelman said in Sydney last night—that there is a big difference between a system of judicial exchanges, which for various reasons rehearsed by Justice French in his paper in 2005 and for other reasons as well has a lot to commend it, and the development of an integrated national judiciary. They are two quite different things. A system of judicial exchanges may be a pathway to the ultimate development of an integrated national judiciary, but it is not the same thing.

The committee, I think very appropriately, expressed caution about the desirability of a national judiciary. At page 56 of the report the committee says it is ‘cautious about what can be achieved through a national judiciary’. I think the parliament should be very slow to embrace calls for an integrated national judiciary. The Australian judicial system reflects the federal nature of our polity. The fact that there are state and territory supreme courts with particular jurisdictions, which are quite separate from although often overlapping with the jurisdiction of the federal courts under chapter 3 of the Constitution, is an important feature of our system. May I say on behalf of the opposition, and in this we share the view of the committee, that I would be very slow and sorry to see the autonomy of state supreme courts and territory supreme courts eroded by the integration of those courts into a uniform national judiciary, which would inevitably be dominated by the federal judicial system, by Commonwealth courts.

So, while welcoming and being rather attracted to the idea of greater harmonisation and further fostering of judicial collegiality through intercourt exchanges and joint commissions, the opposition does not support the idea of a single, integrated, national judiciary. It is a profoundly antifederal proposal. It would be dominated by the Commonwealth and also I suspect by New South Wales, whose Supreme Court is, in terms of the throughput of cases, the busiest and most powerful court in the land, if not in terms of where it lies in the tier of appellate structures then certainly in terms of the volume of work that that court commands. So the idea that Chief Justice Spigelman suggested in his speech last night is not one that recommends itself to the federal opposition.

Having said that, in the areas of judicial exchanges, judicial complaints handling procedures, which is another matter that this report addresses, recruitment to the judiciary and the protocols which ought to govern that, which is another important area that this report addresses, there are many very useful and thoughtful recommendations in the report. It is a bipartisan report and the opposition will consider them carefully. I seek leave to continue my remarks later.

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