Gerard Rennick (Queensland, Liberal Party) Share this | Link to this | Hansard source

Before moving the motion, I advise the chamber that Senators Hanson and Roberts will also sponsor the motion. I, and also on behalf of Senators Hanson and Roberts, move:

That the following matter be referred to the Legal and Constitutional Affairs References Committee for inquiry and report by 7 March 2025:

The benefits of establishing an independent and transparent judicial commission to encourage public confidence in the justice system and uphold the separation of powers, with particular regard to:

(a) current and best practice complaints handling and resolution processes related to judicial officers and courts administration;

(b) the financial cost associated with establishing such a commission;

(c) current and best practice processes to support appropriate scrutiny and accountability of courts, commissions and tribunals, to ensure equity is upheld;

(d) processes to improve efficiency of the justice system;

(e) how the Commonwealth Government can support the effective and efficient administration of state and territory courts, tribunals and commissions;

(f) how costs are awarded and whether reform in this area is required; and

(g) any other related matters.

I was motivated to move this motion as a result of a friend who works in the legal industry—I had not heard from him in a long time—sending me a message a few weeks ago. It basically said that we needed a judicial commission. I was surprised that he sent me this. Within the next 24 hours, I had another friend also send me a text message with a link showing that the Queensland Law Society has long advocated for the establishment of an independent judicial commission in the state. I've had a number of people over the years come to me with various gripes about the legal industry, and it's something on which I've said,: 'Look, separation of powers—the judiciary is the judiciary. We're in politics. We're the parliament.' But I think it's time that we had serious consideration of how judges come to their decisions.

There's a famous saying: 'Who will guard the guardians?' I know that throughout my time here, in estimates, we often ask the bureaucrats questions and we don't really get satisfactory answers, but at least it's a process where we can expose the workings of government and people can see them. It frustrates many of my followers, I know, but I do think that, by shining a light on the practices that occur, eventually we will seek to improve the level of quality assurance and service delivery and, hopefully, lift the standard of decision-making. It's for that reason that I think we need to make the same decisions in regard to the judiciary.

I don't pretend to be a legal expert by any means, but I know that, when I did my Master of Tax Law, I was often intrigued by some of the rulings that I just thought were totally irrational or dysfunctional and didn't make a lot of sense. On a personal level, I've always been very frustrated by the Tasmanian dams decision, whereby Bob Hawke back in 1983 took the state of Tasmania to court—or was it the other way around, with Tasmania taking the federal government to court?—because the federal government wanted to use the foreign treaties power to override the plenary powers of the state government to control water in their state. The High Court ruled in favour of the federal government that time, but, if you ask me, I don't think for a minute that our founding fathers, when they framed the Constitution and gave foreign treaty powers to the federal government, intended that 50 or 100 years later the federal government could sign a treaty with a foreign body and then overrule the state government, which has the plenary powers with water. It's always intrigued me—well, it hasn't intrigued me. It's actually been a frustration of mine. In that case, I felt that was judicial activism. I don't think the people of Australia would have wanted that, because it diminished the sovereignty of the states. Last week I tried to move a motion to look at reforming the roles and responsibilities of state and federal governments, but I think that is something that should be dealt with by the parliament; I don't think it should be dealt with by activist judges.

Almost 40 years after that Franklin Dam decision, we had another bizarre ruling out of the High Court that also greatly frustrated me, and of course that was Palmer v Western Australia, where Clive Palmer took Western Australia to court over the fact that Western Australia had closed its borders. Section 92 of the Constitution clearly says we have free movement and free intercourse amongst the states. In the High Court ruling, the High Court judges relied on an obscure case from the late eighties to do with the sale of crayfish between South Australia and Tasmania. That also came under section 92, but it was the trade and commerce limb of section 92, not the free intercourse limb of section 92. In that case back in the eighties, Cole v Whitfield, the High Court ruled that Tasmania had rights to fisheries and responsibility for fisheries and could block South Australia from selling crayfish into Tasmania. That is fair enough. It is the role of state governments to control their fisheries. But comparing dead crayfish to the live movement of people is, to me, cherry-picking and a bridge too far. To somehow argue that the sale of crayfish could be a precedent for the movement of people among the states epitomises how the judges in this case did not really want to be activists; they just wanted to wash their hands of the whole thing. They just picked some obscure case and said, 'Oh, look, here you go: we're going to merge the limbs again. People, crayfish—what is the difference?' Well, there happens to be a big difference because, as we saw, many people were unable to see their loved ones pass away. Mothers were unable to cross the borders to give birth. We had people sleeping in cars and tents and whatever rendered homeless because they could not return to their home states.

These judges need to be held accountable for their decisions. Now, don't get me wrong. No-one is perfect and you are not always going to get it right but we need to stop judges from using precedents to cherry-pick a case because it might suit their objectives or because they want to wash their hands of a particular case. I am sorry but the judicial system has a responsibility under the separation of powers to hold politicians to account through the courts, okay? Because we can't have politicians not being held to account by the judiciary when we have those separations of powers. We need that genuine separation of powers. Obviously the politicians are not going to hold themselves to account because we have that internal conflict of interest. These are some of the reasons why.

An interesting article was sent to me when the Queensland Law Society did advocate for the establishment of an independent judicial commission. They said, 'The primary aim of such a commission is to preserve public confidence in the administration of justice and to promote the separation of powers. A strong and independent judiciary is fundamental to maintaining the integrity of the judicial system as well as government and public institutions.' That is a very, very good point, because in the last 12 months a case was taken in front of a judge. The judge ruled that these particular applicants had no standing. It turned out that the judge had represented the defendant in prior cases and had never disclosed her connection to the defendant, or what would have been the defendants had they got standing. Yet again, you have got to ask yourself: why isn't this judge being held up to scrutiny for the fact that she did not disclose that she once represented this particular alleged defendant, or what would have been a defendant had standing been given? So, yet again, when it comes to judges, it is not always the fact that they wash their hands or they are activists. Sometimes they actually have a conflict of interest. These judges, like everyone else, need to be held accountable to the people.

Just in the last week we had the issue of a lady in Victoria who was actually locked up for 22 days in the COVID pandemic because she did not wear a mask. The judge actually found in her favour that the Victorian government had acted incorrectly in locking her up. The young lady who was locked up in jail for 22 days for not wearing a mask was offered $15,000 to settle. She quite rightly wanted to take a stand because she wants to fight. It's not easy to take a stand against the big institutions in this day and age, because they will step on you if you take them on. To her credit, she had the guts to take them on. She won in court. But, lo and behold, the court ruled against her in terms of costs, and now she's got to find $200,000 to pay for her own legal fees. So this is another thing that we need to look at in this inquiry, if it gets up: the cost of trying to protect your rights or hold people to account—not just the government but big corporations or whatever. It's not easy. Many people just do not have the money to do this, because you are looking at hundreds of thousands of dollars, and there's no guarantee that, even if you do win, costs aren't going to be awarded against you.

So I would recommend to people that we do vote this motion up. I know we've got a hectic workload and all that, but that's why we come down here: to fight the fight—to fight for freedom.

I'll just throw one other thought in there, because I've had another constituent put this idea to me and I didn't know—and I stand to be corrected, because, like I said, I don't pretend to be an expert on all legal matters. Apparently, in the States, some judges are actually elected, and that way, if a judge gets too far away from what the community wants or expects, they get booted out of office through an electoral process. In other words, judges are elected and not selected, and I think there's some merit in that. I don't know if you'd want to take that all the way through to the High Court, but it would certainly be something worth thinking about at your local magistrate's office.

In my home state of Queensland, where crime is rampant, are the magistrates cracking down enough? To be fair to the magistrates—with the greatest of respect—they may be bound by the laws made by the government of the day that prevent certain repeat offenders from being locked up. But these are issues that we need to look at.

I'll finish with this: who will guard the guardians? I think that everyone should be held to account; everyone should feel as though someone is watching them, because, if they don't feel like they're being watched, they're inevitably going to get lazy and not necessarily maintain the integrity of their roles. So I'll finish on that, and I would strongly recommend that everyone support this motion to investigate the establishment of a judicial commission.

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

The government opposes this motion and calls out what is clearly an attempt to have an inquiry into courts—cloaked, on the face of the language of the motion, in what appears to be neutral language. But the breadth and nature of the terms of the inquiry suggest that it is little more than an attempt to set up a parliamentary inquisition into judges and courts, and nothing that has been said by Senator Rennick has done anything to allay that alarm—in fact, it has increased that alarm, because what Senator Rennick has just done is to open up a whole range of issues that suggest that this inquiry is not only a bad idea but would strike at the heart of judicial independence and our separation-of-powers doctrine.

Taking a big step back: the Commonwealth Constitution establishes the parliament, executive and judiciary as three separate branches of government, but obviously the executive and the parliament overlap. The text and structure of the Commonwealth Constitution embody the separation-of-powers doctrine that is reflected in chapter III of that document, and that concerns the judicature. It has been articulated in a number of cases by the High Court, including the Boilermakers case back in 1956. But perhaps most importantly, the institutional and societal values that the separation-of-judicial-powers doctrine seeks to safeguard are judicial independence, the rule of law and the preservation of individual rights. It does it in a number of ways, but section 72 of the Commonwealth Constitution provides that judges of chapter III courts:

(i) shall be appointed by the Governor-General in Council;

(ii) shall not be removed except by the Governor-General in Council, on an address from both Houses of the Parliament in the same session … on the ground of proved misbehaviour or incapacity …

It also provides that judges shall receive remuneration—

Hon. Senators:

Honourable senators interjecting—

Deborah O'Neill (NSW, Australian Labor Party) Share this | Link to this | Hansard source

Senator Ghosh, sorry to interrupt you; just hold for a moment. I might just ask for a bit of order in the chamber. It's hard to hear. Senator Ghosh, you have the call.

Varun Ghosh (WA, Australian Labor Party) Share this | Link to 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.

Paul Scarr (Queensland, Liberal Party, Shadow Assistant Minister for Multicultural Engagement) Share this | Link to this | Hansard source

The first statement I should make is that if this reference did go to the Legal and Constitutional Affairs References Committee, which I chair, we would have the benefit of Senator Ghosh's obvious deep well of experience, and I commend the senator on the thought and reflection which he put into that contribution. If this did go to the references committee, we would have the benefit of that expertise, along with that of other members of the committee.

I don't see Senator Rennick's terms of reference as necessarily being objectionable on the face of it. My main concern is the workload of both the Legal and Constitutional Affairs Legislation Committee and the Legal and Constitutional Affairs References Committee. There's a lot of important legislation coming through this place. It does need rigorous examination, and we also already have some very important references which we're trying to finalise. I believe—and I say this in good faith—that all of us need to consider the workload which is placed on the secretariat in particular and their ability to manage inquiries such as this. So I'd just like to put that on the record.

I don't believe Senator Rennick is proposing anything other than in good faith. I think that Senator Ghosh's reference to the independence of the judiciary is actually reflected in the preamble to the terms of reference, which talks about upholding the separation of powers. There were some remarks that Senator Rennick made with respect to what he considered should be the ambit of a judicial commission, which I think would be ventilated in the course of an inquiry. On the face of it, from my perspective, I would have thought a judicial commission would need to consider what role it plays in terms of section 72 of our Constitution, dealing with the judicature, which Senator Ghosh referred to. Senator Ghosh referred to the provisions accurately.

This parliament does have a role in terms of considering the removal of a judge on the ground of proved misbehaviour or incapacity, but there is a question as to how this parliament would come to that view. I think a judicial commission potentially has a role in that regard. But, as I say, the committee on which I'm serving at the moment has a very large workload, as does the Legal and Constitutional Affairs Legislation Committee, and I think the Senate needs to consider that, notwithstanding, on the face of it, the worthy nature of this referral.

Debate interrupted.