Varun Ghosh (WA, Australian Labor Party) Share this | Hansard source

Judges' remuneration shall be fixed, and that remuneration shall not be diminished during a continuance of their time in office. Judges also have fixed tenure up to the age of 70. Subject to the removal procedure outlined, they are there for the period of their appointment until they're 70.

These constitutional guarantees of tenure and security of remuneration, as well as the process and narrow basis for the removal of judges, are intended to serve a fundamental tenet of our justice system—that is, the impartial and independent adjudication of disputes. That requires judges to be free from external influence, and it requires societal respect for judicial institutions. With respect to my colleague Senator Rennick, his remarks and the proposal that is before us today strike at both of those elements. The former chief justice Robert French, writing extracurially, said:

The courts in a sense walk a tight rope between the executive and the legislature, responsive to community sovereignty, endeavouring to be sensitive to community values, but not yielding to the tyranny of the majority.

Judicial independence and impartiality ensure that that is case. In a narrow sense, a judicial commission can serve useful processes, but the proposed inquiry would be a waste of the Senate's and the Legal and Constitutional Affairs References Committee's resources were it to be in that narrow sense.

Senator Rennick's remarks earlier today really struck at the heart of Australia's constitutional system and are to be deprecated. It was the United States Supreme Court, in Marbury v Madison, that said:

It is emphatically the province and duty of the judicial department to say what the law is.

The fundamental principle of judicial review has been accepted by the High Court of Australia on a number of occasions, but perhaps most prominently in the Communist Party case. It is vital to the maintenance of a separation of judicial power but also to the maintenance of a constitutional system of government that those judges are able to enforce the Constitution, to interpret what it says and to not be inquired into afterwards because members of this place or members of an appointed judicial commission take issue with their reasons. That sits at the heart of what Senator Rennick has said here. The expressions are truly alarming—'various gripes', 'bizarre decisions'. Decisions of courts that essentially Senator Reddick just disagrees with would be subject to inquisition because of that disagreement.

The role of the courts in providing important checks and balances on the exercise of powers by the parliament and the executive cannot be overstated, and you cannot put parliamentary scrutiny of judicial reasons through an inquisitorial body or executive scrutiny of judicial reasons through an executive body above that independence and that ability to enforce the law and to interpret the law at a judicial level.

It's also the case that courts provide an important public service in resolving disputes, and, in holding the power to interpret laws and determine their application in individual cases, they provide a vital function of dispute resolution in our society. That is not something that this parliament, or a judicial commission created by it, should lightly interfere with.

Our courts are fundamental to the good governance of our society. It is important that they continue to be based on the highest standards of integrity. There is a role for a judicial commission in that context, but it is a very narrow one. Australia has a very good record and a proud record of being served well by our judiciary. As with other branches of government, our courts must serve the Australian people, and it is important that the Australian people are able to see that integrity is at the heart of our judicial system.

Our legal system and our laws must be transparent and accessible. The laws, rules and structures of our legal system should be understood by those applying the law and accessible to people who are outside the legal community and those who are served by it. That's why the Australian Law Reform Commission was asked to conduct an inquiry in 2021 into judicial impartiality and the law on bias. The commission produced a report entitled Without fear or favour: judicial impartiality and the law on bias. The terms of reference required the commission to specifically consider:

a range of matters related to those terms of reference.

That goes to the heart of ensuring the integrity of our legal process and our judicial system without engaging in a free range inquiry or inquisition into judges and courts when they hand down decisions that people in this place or outside it simply disagree with.

In assessing this, the Law Reform Commission was required to consider the law and procedures of courts in the context of other institutional structures and practices supporting judicial impartiality and public confidence in it. There have been a range of Senate and other inquiries into this topic previously as well. They range back to 1993. There was the Senate Standing Committee on Legal and Constitutional Affairs inquiry into the cost of justice: checks and imbalances. There was the Senate Standing Committee on Legal and Constitutional Affairs inquiry into gender bias and the judiciary, from 1994. There was the same committee's inquiry into legal aid and access to justice in 2004. There was the inquiry into Australia's judicial system and the role of judges by the references committee in 2009. There was also the inquiry by the House of Representatives Standing Committee on Social Policy and Legal Affairs into the family law system in 2017.

The Australian Law Reform Commission considered these various reports and was guided by the following principles: the court has a vital role upholding judicial impartiality; the limits of judicial partiality are determined by the function of courts; litigants and the public have a legitimate interest in judicial impartiality; the law is shaped and dependent on the other institutional structures; and transparency, equality, integrity and fairness are crucial complementary values.

The commission found in its report that public confidence in the Australian courts is high. The Australian judiciary respected internationally for its integrity and its impartiality. The commission crucially also found that the substantive case law on actual and apprehended bias, as clarified by the High Court of Australia, does not require reform—that is, that the law on this is right. It's not to say judges are perfect, because, of course, they're not, but the law relating to bias and the law requiring impartiality in judicial decision-making in Australia is sound.

To that end, the commission made 14 recommendations directed at further promoting and protecting judicial impartiality and public confidence in the judiciary. The Albanese government at the time welcomed those recommendations. They were intended to enhance transparency and consistency and to reinforce public confidence in the judicial system. Most of those recommendations are related to federal courts or chapter 3 courts, relating to action that was required. I want to talk about three of those recommendations specifically. They were the ones that were directed to the Australian government.

Recommendation 5 calls on the Australian government to establish a federal judicial commission to consider complaints about the judiciary. At the heart of my speech today is not an objection to a judicial commission per se; it's an objection to referring these terms of reference to a Senate committee, and then it's enlarged to a deep and truly worried objection to what Senator Rennick seemed to be implying about what the scope of that inquiry would look at and reforms that he would seek to flow from it. The creation of a federal judicial commission does have wide support, and it is supportive of transparency while not undermining independence in our judiciary.

The government has since held a public consultation on the scope of a federal judicial commission, and that sought input from stakeholders and interested members of the public on the model and key features of a federal judicial commission. It is an important institution, but it needs to be very carefully calibrated so as not to undermine the independence of judges and courts and so as not to undermine public confidence in the court system, which is high.

The second recommendation relevant here is recommendation 7:

The Australian Government should develop a more transparent process for appointing federal judicial officers on merit …

That is a recommendation that this government has wholeheartedly adopted, and the Attorney-General has reintroduced a transparent, accountable and merits based appointment process for the federal judiciary as a priority. No matter what the bodies of the Australian government are, whether they be courts or executive bodies or commissions, appointments to them must be merit based. It is an essential principle that everyone in this place should adhere to in order to ensure the long-term and successful functioning of institutions in our society.

The final recommendation I will speak about is the recommendation on diversity, which was recommendation 8:

The Attorney-General (Cth) should collect, and report … on, statistics regarding the diversity of the federal judiciary.

Promotion of adversity at high levels and in high institutions is important, and it's important to have the data to inform that kind of policymaking and those kinds of appointments. The Attorney-General is also engaging closely with federal courts and the Australasian Institute of Judicial Administration to consider how collecting additional data on the characteristics of the judiciary can occur and how best to deploy this research in order to deliver better appointments.

There have been a number of inquiries into this topic by the Senate, and there's a stakeholder consultation process that's been undertaken, so the reference to the committee is not required. The scope of what Senator Rennick was talking about would strike fairly fundamentally at the concept of judicial review in our constitutional system, it would strike at the independence of our courts and it would strike at public confidence in the judiciary. So I think ultimately it's a pernicious suggestion, and it is a suggestion against which this Senate should set its face.