CHAPTER 1
Introduction
Referral of the inquiry
1.1
The Courts Legislation Amendment (Judicial Complaints) Bill 2012
(Judicial Complaints Bill) and the Judicial Misbehaviour and Incapacity
(Parliamentary Commissions) Bill 2012 (Parliamentary Commissions Bill) were
introduced into the House of Representatives by the Attorney-General, the Hon
Nicola Roxon MP, on 14 March 2012.[1]
On 22 March 2012, the provisions of both bills were jointly referred
to the Senate Legal and Constitutional Affairs Legislation Committee
(committee) for inquiry and report by 18 June 2012.[2]
The reporting date was subsequently extended to 13 July 2012.[3]
On 13 July 2012, the committee presented an interim report in which it
indicated its intention to table its final report by 2 August 2012.
Purpose of the bills
1.2
In her Second Reading Speech for the Parliamentary Commissions Bill, the
Attorney-General outlined that this bill, and the Judicial Complaints Bill, are
important steps 'to ensure our federal judicial system is responsive,
impartial, and capable of resolving serious complaints'.[4]
The Attorney-General indicated that the bills had been 'developed in
consultation with, and are supported by, the heads of federal courts
jurisdiction'.[5]
Judicial Complaints Bill
1.3
The Judicial Complaints Bill amends the Family Law Act 1975
(Family Law Act), the Federal Court of Australia Act 1976 (Federal Court
Act) and the Federal Magistrates Act 1999 (Federal Magistrates Act)
to establish a framework to enable the Chief Justices of the Federal Court and
the Family Court, and the Chief Federal Magistrate (the heads of jurisdiction),
to manage complaints that are referred to them regarding judicial officers. The
bill also amends the Freedom of Information Act 1982 (FOI Act) to
exclude documents created through the complaints handling scheme from the
operation of the FOI Act.
1.4
The Explanatory Memorandum (EM) to the Judicial Complaints Bill states
that it is designed to support a largely non-legislative framework to assist the
relevant head of jurisdiction to manage complaints regarding judicial officers
which are referred to them. In particular, the Judicial Complaints Bill will:
-
provide a statutory basis for these heads of jurisdiction to deal
with complaints about judicial officers;
-
provide immunity from suit for heads of jurisdiction as well as
participants assisting a head of jurisdiction in the complaints-handling
process; and
-
exclude from the operation of the FOI Act documents arising in
the context of consideration and handling of a complaint about a judicial officer.[6]
1.5
In her Second Reading Speech, the Attorney-General emphasised that the
Judicial Complaints Bill would 'provide heads of jurisdiction with an option to
establish a conduct committee to investigate the basis of a complaint and
report on what action should be taken about the complaint'.[7]
The EM to the Judicial Complaints Bill contains a diagram of the proposed
non-statutory process for the handling of judicial complaints which will be
supported by the Judicial Complaints Bill:[8]
Diagram 1: Proposed non-statutory process for judicial
complaints handling
Parliamentary Commissions Bill
1.6
The Parliamentary Commissions Bill enables parliamentary commissions to
be established following a resolution by each House of the Parliament to
investigate specified allegations of misbehaviour or incapacity of a specified
Commonwealth judicial officer (including a Justice of the High Court of
Australia).
1.7
The EM to the Parliamentary Commissions Bill states:
The Bill provides a standard mechanism to assist the Parliament
in its consideration of removal of a judge or federal magistrate from office
under the Constitution...While instances of removal of judges from office in Australia
have been extremely rare, it is important that a clear framework is in place in
the event that such a circumstance were to arise. Currently, there is no
standard mechanism by which allegations about misbehaviour or incapacity
against federal judicial officers would be investigated to assist Parliament's
consideration of removal of a federal judicial officer under paragraph 72(ii)
of the Constitution.[9]
1.8
In her Second Reading Speech, the Attorney-General outlined the key
features of the Parliamentary Commissions Bill:
This bill establishes an effective tool that the parliament
can employ to inform itself about the factual basis of an allegation of serious
misbehaviour or incapacity against a Commonwealth judicial officer...
A commission would provide for an independent investigation
into the factual basis of the allegation, in order to provide parliament with
appropriate evidence for its consideration.
A commission would in no way usurp parliament's role in
determining whether the conduct of a judicial officer amounted to proved
misbehaviour or incapacity...
It enables a commission to operate in an inquisitorial manner,
similar to the way that parliamentary committees operate.
A commission will be required to act in accordance with the
rules of natural justice, and the bill specifies procedures a commission must
follow to ensure the Commonwealth judicial officer who is the subject of an
investigation is treated fairly.
Chapter III of the Constitution establishes the independence
of the Commonwealth judiciary from other limbs of government. Consistent with
this independence, a commission would not have power to require the
participation of current and former Commonwealth judicial officers in its
investigation into an allegation.
Commonwealth judicial officers could still participate and
assist a commission's investigation should they choose to do so.[10]
Background
1.9
Under section 72 of the Constitution, Justices of the High Court of
Australia (High Court) and of other courts created by the Federal Parliament,
once appointed, cannot be removed except by the Governor-General in Council on
an address from both Houses of Parliament in the same session 'praying for such
removal on the ground of proved misbehaviour or incapacity'. This protection of
judicial tenure is recognised as an important safeguard of judicial
independence in the constitutional separation of powers.[11]
1.10
Currently, the Federal Court of Australia (Federal Court), the Family
Court of Australia (Family Court) and the Federal Magistrates Court each have
similar informal and largely non-legislative judicial complaints procedures.[12]
While some differences exist between the courts,[13]
these procedures involve mechanisms to deal with complaints regarding delay or
judicial misconduct made to the Chief Justice of the Federal Court, the
Chief Judge of the Family Court, or the Chief Magistrate of the Federal
Magistrates Court. However:
This complaints procedure does not, and cannot, provide a
mechanism for disciplining a judge [or federal magistrate]. It does, however,
offer a process by which complaints made about judicial conduct by members of
the public can be brought to the attention of the [head of jurisdiction] and
the judge [or federal magistrate] concerned and it provides an opportunity for
a complaint to be dealt with in an appropriate manner.
For constitutional reasons, the participation of a judge in
responding to a complaint is entirely voluntary. Nevertheless, it is accepted
that a procedure for complaints can provide valuable feedback to the Court and
to its judges [or federal magistrates] and presents opportunities to explain
the nature of its work, correct misunderstandings where they have occurred and,
if it should fall short of judicial standards, to improve the performance of
the Court.[14]
1.11
The procedure provided for under section 72 of the Constitution for the
removal of a federal judge has never been used but, in 1986, the parliament
passed the Parliamentary Commission of Inquiry Act 1986. This
legislation established a commission to inquire into, and advise the parliament
on, whether the conduct of then High Court Justice the Hon Lionel
Murphy had 'been such as to amount...in its opinion, to proved misbehaviour within
the meaning of section 72 of the Constitution'.[15]
Following revelations that Justice Murphy was terminally ill, the commission
was terminated by repealing legislation. Prior to the establishment of the
commission, two Senate select committee inquiries were conducted in 1984 and
criminal proceedings took place in 1985 against Justice Murphy in the
Supreme Court of New South Wales. The criminal proceedings resulted in a
conviction for one of two charges of attempting to pervert the course of
justice; however, this conviction was quashed following an appeal and
Justice Murphy was acquitted at the second trial.[16]
1.12
There are also examples of state parliaments dealing with allegations of
misconduct or incapacity against judicial officers.[17]
These include a statutory Parliamentary Judges Commission of Inquiry
established by the Legislative Assembly of Queensland in 1988 to investigate
whether the behaviour of Justice Angelo Vasta warranted his removal from office
as a judge the Supreme Court. That commission reported that Justice Vasta's
behaviour warranted his removal. Justice Vasta was allowed to address the
Legislative Assembly to show cause why he should not be removed from office. However,
the Legislative Assembly agreed with the findings of the commission and
resolved to address the Governor of Queensland requesting the removal of
Justice Vasta on 7 June 1989. Following presentation of the address, Justice
Vasta was removed from office by the Governor.[18]
Constitutional Commission report
1.13
In 1988, possible reform of the mechanism for the removal of judicial
officers in section 72 of the Constitution was proposed by the then Constitutional
Commission. In its Final Report, the Constitutional Commission
recommended that section 72 be altered. The alterations proposed that an
address for removal of a justice 'shall not be made unless a Judicial Tribunal,
requested by a Minister of State for the Commonwealth to inquire into an
allegation of misbehaviour by or incapacity of the Justice, has reported the
facts found by it could amount to misbehaviour or incapacity warranting
removal'.[19]
Further, 'the address of each House of Parliament must be based on facts found
by the Tribunal'. The proposed alterations specified that a member of the
Judicial Tribunal 'must be a Justice of a superior federal court other than the
High Court or a judge of the Supreme Court of a State or Territory'.[20]
Australian Law Reform Commission
report
1.14
In February 2000, the Australian Law Reform Commission (ALRC) tabled its
report, Managing Justice: A Review of the Federal Civil Litigation System.
In relation to the issue of complaints against Commonwealth judicial officers,
the ALRC noted that it had 'moved away from a proposal...to establish a
standing national judicial commission to receive and investigate complaints
against federal judges' and had 'concluded that the establishment of such a
body would be problematic under chapter III of the Constitution'.[21]
Instead, the ALRC recommended that 'each federal court develop a transparent
internal system of complaints handling' and that 'both Houses of federal
Parliament develop rules or a protocol designed to ensure the smooth transfer
and certain handling of the rare complaints against federal judges of
sufficient seriousness and substance to merit consideration of whether to
remove the judge from office'.[22]
In particular, the ALRC recommended:
Parliament should give consideration to whether, and in what
circumstances, the protocol might provide for the establishment of an
independent committee, drawn from a panel of distinguished retired judges (or
other suitably qualified persons), to investigate the complaint and prepare a
report to assist Parliament with its deliberations. Such a provision should not
derogate from the flexible powers presently possessed by the two Houses to
fashion and control their own procedures.[23]
Previous Senate Committee report
1.15
In December 2009, the Senate Legal and Constitutional Affairs References
Committee (References Committee) tabled its report titled Australia's
Judicial System and the Role of Judges.[24]
The References Committee made a number of recommendations in relation to
establishing processes to handle complaints regarding judicial officers. In
particular, the References Committee recommended that, subject to
constitutional limitations and consultation with the federal courts, the
Australian Government should establish a judicial commission modelled on
the Judicial Commission of New South Wales.[25]
1.16
In relation to complaints against judicial officers, the References
Committee commented:
The committee is persuaded that because of the simplicity of
the conduct requirements in section 72 there are legislative gaps in the
existing arrangements. In the first place the section does not address the
process required for any inquiry into serious misconduct or incapacity.
Secondly, there are no statutory arrangements for dealing with less serious
complaints of judicial misconduct. Courts are left to adopt informal mechanisms
and have no specific investigative or complaint handling resources or
expertise.[26]
1.17
The References Committee's report also recommended that the
Australian Government implement an interim procedure for addressing
judicial complaints, including a federal process to enable the establishment of
an ad hoc tribunal to investigate complaints of judicial misconduct or
incapacity, and guidelines for the investigation of less serious misconduct or
incapacity issues.[27]
1.18
The Australian Government's response in 2010 to the References
Committee's report noted its recommendations and indicated that the Australian
Government was working within the then Standing Committee of Attorneys-General
on a range of options for handling complaints against judicial officers.[28]
1.19
The High Court does not have a procedure for dealing with complaints
regarding judicial officers. The References Committee's report recommended that
the High Court 'adopt a written complaint handling policy and make it
publicly available'.[29]
In its response to the References Committee's report, the
Australian Government noted that, on 17 December 2009, the Chief
Justice of the High Court had written to the then Attorney-General in
relation to this matter. In his letter, the Chief Justice stated:
There is no statutory or other basis for establishing any
procedure for 'handling complaints' against Justices of the High Court. Because
it seems inevitable that any question as to the constitutional validity of
procedures of that kind would come to this Court for decision, the Court will
make no further comment on the issue.[30]
Previous legislation
1.20
Previous attempts have been made to pass legislation to establish a
parliamentary commission to investigate judicial complaints at the federal
court level. On 11 September 2007, Senator Linda Kirk introduced a
private senator's bill, titled the Parliamentary (Judicial Misbehaviour or
Incapacity) Commission Bill 2007 (Kirk Bill) and, on
22 February 2010, the Hon Duncan Kerr SC MP, introduced a
private member's bill, titled the Parliamentary (Judicial Misbehaviour or
Incapacity) Commission Bill 2010 (Kerr Bill). Both the Kirk Bill and the
Kerr Bill proposed the establishment of a commission to assist the
parliament in the exercise of its constitutional responsibility in instances of
alleged misbehaviour by, or incapacity of, a federal court justice.[31]
Both the Kirk Bill and the Kerr Bill lapsed at the dissolution of the
42nd Parliament.
Conduct of the inquiry
1.21
The committee advertised the inquiry in The Australian newspaper
on 11 April 2012. Details of the inquiry, including links to the
Bills and associated documents, were placed on the committee's website at www.aph.gov.au/senate_legalcon.
The committee also wrote to a number of organisations and individuals, inviting
submissions by 13 April 2012.
1.22
The committee received 15 submissions, which are listed at Appendix 1.
All public submissions were published on the committee's website.
1.23
The committee held public hearings for the inquiry on 11 May 2012
and 25 May 2012 at Parliament House in Canberra. A list of witnesses
who appeared at the hearing is at Appendix 2, and copies of the Hansard
transcript are available through the committee's website.
Acknowledgement
1.24
The committee thanks those organisations and individuals who made
submissions and gave evidence at the public hearings.
Note on references
1.25
References to the committee Hansard are to the proof Hansard.
Page numbers may vary between the proof and the official Hansard
transcript.
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