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

As I said at the beginning of the debate on the previous bill, this is another initiative adopted by the government in collaboration with the opposition, whereas the previous bill was in fact an opposition initiative.

This bill, the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012, is fairly characterised as a joint initiative of the government and the opposition. It had its genesis in work that the former member for Denison, Mr Duncan Kerr—now Mr Justice Kerr of the Federal Court of Australia—undertook during the last parliament. I think it is appropriate to put on the public record that Mr Kerr approached me as the opposition spokesman and suggested that together we propose a series of measures that would deal with an evident gap, or lacuna, in the Constitution—that is, the failure of the Constitution to provide a mechanism for applying the test of fitness in a case of judicial misbehaviour. Mr Kerr and I worked on this proposal, and I should say in respect of Mr Kerr—or His Honour, Justice Kerr, as he now is—that the initiative and the work primarily came from him; but it was a collaborative process, as he has been good enough to acknowledge on many occasions.

At present, the only legislative provision dealing with judicial complaints is that to be found in section 72 of the Constitution, which provides that justices of the High Court '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'.

As I said a moment ago, section 72 provides no mechanism for an inquiry as to how misbehaviour or incapacity is to be proved. Until this bill, there was no statutory structure to fill that gap. Section 72, I am pleased to say, has only been invoked once in the 111 years of Commonwealth history. I think it is a great tribute to the integrity of our judiciary that only once in more than a century have there been issues concerning the integrity of a federal judicial officer that were so serious that the provisions of section 72 were invoked. The one exception, I am sorry to say, is in relation to a former member of this Senate, the late Lionel Murphy, who died before the processes could be concluded.

As I said earlier, the bill was developed as a result of a joint initiative by Mr Kerr and me, in consultation with the chief justices of the Federal Court and the Family Court, and with the Chief Federal Magistrate. At present, informal processes exist in each of the courts for handling complaints about judicial officers and are exercised by the chief justices and the Chief Federal Magistrate, but those processes are informal and have no statutory or official basis. With the increasing size of the courts—indeed, there are now more than 100 federal judges and 62 federal magistrates—there is a perceived need to have in place a statutory structure for dealing with complaints to ensure that participants in the processes are immune from suit.

The bill also proposes that documents arising in the consideration and handling of a complaint against a judicial officer should be exempt from the operation of the Freedom of Information Act. The complaints to be dealt with under the amendments proposed by the bill—in addition to 'proved misbehaviour or incapacity', in the words of section 72 of the Constitution—concern those about the performance by a judge of his or her judicial or official duties. They do not concern complaints about matters in cases that are capable of being raised on appeal.

The framework itself for the handling of complaints is non-statutory, to provide for the appropriate level of flexibility. Less serious matters may be dealt with by discussion, while more serious matters may call for the establishment of a conduct committee, which may comprise non-judicial members, and possible reference to the Attorney-General. Very serious matters would be referred directly to the Attorney-General for consideration under section 72 of the Constitution and the procedure proposed to be established under the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012. For matters not warranting removal procedures, the Chief Justice may take any measures reasonably necessary, including temporarily restricting a judge to non-sitting duties.

As I said at the beginning of my remarks, this bill initially had its genesis in an initiative of the Hon. Duncan Kerr, in the previous parliament. It provides a standard mechanism to assist the parliament in its consideration of the removal of a judge or magistrate from office under the Constitution. The Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 establishes a parliamentary commission by resolution of each house to investigate specified allegations of misbehaviour or incapacity of a specified Commonwealth judicial officer.

The commission would consist of three members appointed on the nomination of the Prime Minister after consultation with the Leader of the Opposition. At least one member of the commission will be required to be a former Commonwealth judicial officer or a former judge of the supreme court of a state or territory. Serving Commonwealth judicial officers are ineligible for appointment. The commission may engage counsel, staff and consultants. The role of the commission would be to inquire into allegations and gather information and evidence to present to parliament. It would conduct its investigations in an inquisitorial rather than an adversarial manner. It would have the power to require witnesses to appear at a hearing, take evidence on oath, conduct hearings in private, require the production of documents or other items, and issue search warrants. It would then provide a report to parliament through each of the parliamentary Presiding Officers.

The bill does not provide for a standard of proof that the commission would consider needed to be met before reporting to parliament. Section 72 of the Constitution leaves it to parliament to decide for itself what it considers to be 'proved misbehaviour or incapacity', and the view that Mr Kerr and I took after consultations was that the interpretation of that phrase should be left to parliament alone, the purpose of the judicial commission being essentially a fact-finding one. Serving and former Commonwealth judicial officers would be exempted from the application of the commission's coercive powers in order to preserve judicial independence. The Commonwealth would be liable for the reasonable costs of legal representation of a judicial officer under investigation.

The bills were referred to the Senate Legal and Constitutional Affairs Legislation Committee, which reported on 2 August. Several amendments were proposed, principally the amendment excluding serving state and territory judges from membership of the commission and an amendment to require greater security in record keeping—quite a lively topic in another context at the moment, where Federal Court files have mysteriously gone missing. The relevant amendments were made in the other place.

These bills provide for formal processes for procedures that currently would likely be conducted in a similar way, albeit without any explicit statutory framework or guidance. Establishing a framework for the parliament to act on the question reserved for its consideration by section 72 of the Constitution will assist in promoting a transparent and effective complaints-handling mechanism and, as I said before, in filling the gap which section 72 of the Constitution leaves open.

In closing, I want to thank the Hon. Duncan Kerr for the intelligent and collegial manner in which he approached this important issue and the spirit of cooperation and friendship he showed towards me in developing these proposals with the opposition.