George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to 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.

Gary Humphries (ACT, Liberal Party, Shadow Parliamentary Secretary for Defence Materiel) Share this | Link to this | Hansard source

I want to make a few brief remarks about the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 and the Courts Legislation Amendment (Judicial Complaints) Bill 2012 as well. I served on the Senate Legal and Constitutional Affairs Legislation Committee inquiry into the legislation, and a variety of views were advanced at that time to the committee about various aspects of these bills which I think are worth reflecting on. It is important to make clear that this legislation is an attempt to fill an important gap, as Senator Brandis said, in the current process needed to deal with the removal from office of a judge appointed under a federal jurisdiction. That gap is largely filled by these bills but not, in a sense, entirely filled. There are issues which this legislation does not deal with and which, in a sense, are deliberately left unaddressed by this process because, at the end of the day, this process is one that is resolved by the decision of the parliament. It is the parliament—that is, the two houses jointly agreeing on the removal of a judge—that ultimately resolves this process. The processes of parliament are matters for each parliament as it comes along, and it is important that we acknowledge that some parliaments may take different views from those of other parliaments about these matters.

The case of Justice Lionel Murphy was one which gave rise to very considerable concerns about the process used by the parliament. There were two parliamentary commissions that that process gave rise to, and it was the subject of great political debate at the time. These bills provide an avenue for those processes to be at least partially depoliticised and for the process to be laid out in advance, but we should not imagine that the passage of these bills prevents a different process being used in particular cases.

The legislation does not define what 'misbehaviour or incapacity', in the terms of section 72 of the Constitution, actually means. That was an issue, of course, which very much concerned the parliamentary processes and the committees that the parliament appointed in respect of Justice Murphy, and those issues are not resolved here, for good constitutional reasons: those matters are matters of interpretation, they are used in the Constitution and clearly one parliament cannot define what those words mean. It is always open to the courts themselves to determine what those words might mean. It is also, as Senator Brandis pointed out, unclear what standard of proof should be applied in addressing the question of a judge's putative misbehaviour or incapacity: should it be the civil or the criminal standard?

But I think it is important to remind the Senate today that it is essential to have a process to address these issues, because one of the cornerstones of Australian democracy is that we have a separation of powers. It is important that there be some definition around the process that the parliament uses to decide when, how and whether to remove a judge from office. It is important that this process be above reproach to the extent it possibly can be and that Australians therefore have confidence that, should the Australian parliament take the decision to remove a federal judge or perhaps a federal magistrate from office, this will be done on the basis that that person is genuinely incapacitated or has clearly misbehaved in a way which is difficult to dispute.

I reaffirm to the Senate the concerns Senator Boyce and I raised in additional comments to the Senate committee report about the exclusion of serving judges from membership of the commissions, and I direct senators to those comments.

Another matter I wanted to touch on briefly is the question of the application of the judicial complaints bill to the High Court. As I understand the terms of this legislation, it sets out the process whereby a head of jurisdiction is able to establish a conduct committee to investigate complaints received by them in relation to a judge who is a member of the particular court of which that head of jurisdiction is the leader. That process then determines what kind of assessment is made before the parliamentary process kicks in with respect to the assessment of the misbehaviour or incapacity of a particular member of the judiciary.

A conduct committee established under the judicial complaints bill is made up of two judicial members and one non-judicial member. The judicial members would generally be of equal or greater seniority than the judicial officer being investigated. I welcome very much here the concept that, although it is judges judging other judges, there is a non-judicial member of this conduct committee so that a sense of community values is introduced into the debate about whether the person should be removed.

The bill requires the conduct committee to ultimately report to the head of jurisdiction, recommending whether the complaint should be dismissed, whether it warrants consideration by the parliament and possible removal from office through that process, and whether the head of jurisdiction should deal with the matter under their powers of management of the court in some less drastic way. I think that is all very sensible. If allows the court, to some extent, to self-regulate but it does not remove the capacity of the parliament to consider a matter where it feels that a person may warrant removal from their office.

The process, however, does not apply to the High Court of Australia. There are good constitutional reasons why an act of this parliament should not constrain the conduct of the High Court with respect to the removal of judges and their own processes of consideration prior to parliamentary consideration of that question. But it does seem to me to be open to the government to take the matter up with the High Court as a matter of negotiation. As is the case with the parliament, it would be up to the court to decide what it might do in circumstances where it came to the attention, for example, of the Chief Justice that a member of his or her court had engaged in behaviour which would call into question the capacity of that person to continue to serve in that role. I suppose it is open to the High Court to decide what process it might use in those circumstances.

The point of this legislation is to set in place mechanisms for dealing with these issues well before the point at which an actual case of alleged incapacity or misbehaviour arises. The point is to establish a process that is above reproach and that allows the court to address that issue pre-emptively, in a way that does not derogate from the capacity of the parliament to take steps to remove a person considered to be incapacitated or to have misbehaved, but still allows a measure of self-regulation by the court. Although, quite rightly, this should not be a matter for this parliament to regulate, I respectfully suggest it is still a matter that the High Court could and should consider in terms of pre-emptively setting up a process that might be used. If I may use this platform, I respectfully suggest to the government that it address that question with the High Court for the same reasons it has bought forward this legislation to deal with this issue in the lower courts.

It is clear that these mechanisms will be invoked only on rare occasions. We should all be thankful for the fact that, as Senator Brandis pointed out, it is extremely rare that officers appointed to serve on our federal courts have displayed behaviour which brings their conduct into question and that these sorts of provisions are only very occasionally considered by the parliament. It is important for us not to allow the process to be sullied by the day-to-day circumstances of a particular judge's alleged misbehaviour or incapacity. It is important to set out benchmarks at the earliest possible stage to ensure that these processes are dealt with in an effective way well before the point at which a particular instance might give rise to them.

I want to commend both Justice Kerr and Senator Brandis for the hard work that obviously went into developing an effective process here. I hope that the fruit of their work never needs to be used by the parliament, but I am grateful for the fact that, with this legislation passed, there will be a mechanism in place to deal with those circumstances if they do arise. The mechanism is a robust one which I think is likely to serve the parliament well.

There is further work to be done in connection with particular courts, and I hope that the parliament will be apprised of that work as that legislation comes forward. I commend these bills to the Senate as worthwhile developments.

Question agreed to.

Bill read a second time.