Linda Kirk (SA, Australian Labor Party) Share this | Link to this | Hansard source

I move:

That this bill be now read a second time.

I table the explanatory memorandum and I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows—

Today I introduce into the Senate the Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill 2007.

This Bill will establish an independent Commission to hear and determine matters concerning alleged judicial misconduct or incapacity and will require the Commission to report its findings to Parliament.

Australia currently lacks a transparent rule-based method for adjudicating judicial misbehaviour and incapacity in the federal jurisdictions.

The responsibility for determining whether a federal justice should be removed from office resides with the Commonwealth Parliament as provided for in section 72 of the Constitution.

This Bill in no way challenges this constitutional responsibility. The power to remove a judge from office will remain exclusively with Parliament.

The Commission and the hearing process established by the Bill will provide Parliament with the information it requires to make decisions pursuant to its constitutional power.

Section 72 of the Constitution provides that persons appointed as federal judges shall hold such office until they reach the stipulated retirement age of 70.

A federal judge may be removed from office on the ground of proved misbehaviour or incapacity following an address praying for the Justice to be removed passed by both houses of Parliament in separate proceedings but in the same session.

What is missing from the existing procedure is a method for determining whether an allegation of misbehaviour or incapacity is proven.

Parliament does not have an established mechanism for collecting or compelling evidence in such matters, nor does it have a reliable system for sensitively adjudicating the facts of such a matter.

The judiciary needs to be held to high standards of personal behaviour but this must be done within a framework which respects and appreciates the high office they hold. Parliament is currently ill-prepared to deal with judicial incapacity or misconduct should it occur in the future.

It is against this background that I introduce the Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill.

This Bill was first introduced into the House of Representatives on 5th of September 2005 by Duncan Kerr, the member for Denison.

The Bill establishes an independent Commission with statutory powers to hear and determine allegations of misbehaviour or incapacity against a judicial officer.

When an allegation against a judicial officer is made, the legislation will enable Parliament to refer the matter to the Commission for its investigation. The Commission will be empowered to conduct a hearing and compel evidence and will be required to report its findings to the Parliament.

The Commission will comprise three members appointed by the Parliament including a retired judicial officer. Members will be available to convene a panel and determine matters that are referred to it by Parliament.

The Commission will have the authority to conduct proceedings, compel evidence, issue search warrants and offer certain protections to those involved in the inquiry. The Bill also contains enforcement provisions for compliance with the work of the Commission and these provisions will be given effect by way of the Commonwealth Criminal Code.

The Bill requires the Commission to report its findings and recommendations to Parliament. The Commission will not have the power to remove judicial officers. That power rests solely with the Parliament in exercising its section 72 constitutional duties.

The role of the Commission is to assist the Parliament by making recommendations following an investigation of an allegation of judicial misconduct or incapacity.

The standard of proof upon which the Commission will determine matters is on the balance of probabilities. The standard of proof has the same meaning as the civil standard outlined in section 140 of the Evidence Act 1995.  This requires a decision-maker, in deciding whether a matter has been proved on the balance of probabilities, to take into account the nature of the action or defence, the subject-matter of the proceeding and the gravity of the matters alleged.

A number of factors motivated the introduction of this Bill into Parliament.

In recent years there has been a marked growth in the federal judiciary. The number of federal judicial officers is now in the order of 140 and spans a number of courts including the High Court, Federal Court, Federal Magistrates Court and Family Court.

With the increased number of judicial officers at the federal level there is the increased likelihood that Parliament may have to exercise its constitutional power to remove a federal judge for reason of proven incapacity or misconduct.

Judges hold privileged positions in the community and exercise important powers and hold a significant level of responsibility. As a consequence, they are held in high regard and to a high standard of ethical and professional behaviour by the community.

The Commission will provide a transparent method for investigating and determining misconduct with the appropriate procedures in place for hearing evidence about allegations against a judicial officer. The Commission will provide a forum for determining sensitive matters within a framework of respect for the office held by the judicial officer.

The establishment of the Commission also aims to discourage damaging and unfounded attacks being made against members of the judiciary. The Commission puts in place a forum for testing allegations against judicial officers, so that allegations which cannot be proved are unlikely to carry any weight.

The public must also have confidence in the Parliament in exercising its constitutional duties. This Bill will promote such confidence as it is a demonstration to the public that Parliament is serious about ensuring that it is a responsible guardian of the integrity of the federal judiciary.

The case concerning Justice Lionel Murphy of the High Court in the early 1980s was a strong motivating factor behind the introduction of this Bill.

This was the first case to require the Parliament to consider whether or not to remove a federal justice from office under section 72.

Given the controversy surrounding the case and the plethora of proceedings that ensued to determine the matter, it is little wonder that Parliament has since shied away from addressing the complexities of the issues raised by this case.

Odgers 11th edition, in its conclusion to its commentary on the Murphy case commented that:

If a case arises in the future which causes the House to consider action under section 72 of the Constitution, it is likely that the Parliamentary Commission of Inquiry of 1986 will be looked to as precedent. As this chapter has suggested, that body, apart from the questions of its constitutionality, had serious defects, particularly the provisions for hearing evidence in private and for withholding evidence from the Houses. Those features of the commission should not be followed in any future cases.

This Bill will introduce a process that is designed to ensure that history does not repeat itself. The Murphy case highlighted the need for a Commission such as the one established by the Bill which will ensure a thorough and independent examination of misconduct allegations.

This Bill will:

1.

Introduce a fair and unbiased procedure for decision-making in relation to judicial misconduct;

2.

Provide assistance to the Parliament in the execution of its constitutional duties;

3.

Establish an appropriate forum for determining allegations of misconduct and incapacity;

4.

Maintain and strengthen public confidence in the Judiciary and Parliament.

At a time when there is no current allegation against a federal judicial officer, it is appropriate for Parliament to turn its mind to this Bill and the procedures it establishes.

As the Murphy case demonstrated, when an allegation is made against a judicial officer, it is too late to seek to establish an appropriate procedure for determining whether misconduct can be proved.

If Parliament fails to remove a judge when it is necessary to do so due to the lack of an appropriate process for determining whether misconduct can be proved, the long term ramifications will be dire if it is found that Parliament failed to act when there were well-founded suspicions surrounding the conduct or capacity of a sitting Judge.

While no-one wishes that there be a case of judicial misconduct or a situation of incapacity in the near future, we must be prepared.

We cannot afford a situation where a suspicion arises about a judicial officer and Parliament fails to investigate because it simply does not have the resources or mechanisms in place to do so. Such a situation would undoubtedly erode public confidence in the Parliament and the Judiciary.

Determining an appropriate process for proving judicial mis-conduct or incapacity requires a pro-active approach to be taken by Parliament. A fair hearing and the rule of law will be compromised if a reactive approach is taken.

This Bill represents a pro-active approach by putting in place a mechanism to assist the Parliament to exercise its constitutional powers. This Bill provides the opportunity to be prepared for the future and it ensures that the Parliament and Judiciary retains public confidence.

I seek leave to continue my remarks later.

Leave granted; debate adjourned.