Footnotes

Chapter 1

[1]        Section 3(1) Judicial Officers Act 1986, referred to in Complaints Against Judicial Officers by Mr Ernest Schmatt, Chief Executive of the Judicial Commission of New South Wales, p. 1 tabled with the committee on 11 June 2009.

[2]        Submission 4, p. 1.

Chapter 2 - Background

[1]        Attorney-General's website, The Courts page, accessed 3 April 2009: http://www.ag.gov.au/www/agd/agd.nsf/Page/Legalsystemandjustice_TheCourts.

[2]        Attorney-General's Department website Court Appointments page, accessed 3 April 2009: http://www.ag.gov.au/www/agd/agd.nsf/Page/Legalsystemandjustice_CourtAppointments.

[3]        High Court of Australia, Annual Report 2007-08, Commonwealth of Australia, 2008, p. 25.

[4]        High Court of Australia, Annual Report 2007-08, Commonwealth of Australia, 2008, p. 25.

[5]        Additional information, Parliamentary Library Client Memorandum Complaints Against Judges, 6 November 2009, pp 9 and 10.

[6]        Commonwealth Ombudsman, Report 12, 2007 Commonwealth courts and tribunals: complaint-handling processes and the ombudsman's jurisdiction, August 2007, pp 13 to 15.

[7]        Unless otherwise attributed, information for this section was obtained from the Federal Court of Australia website http://www.fedcourt.gov.au/aboutct/jj.html accessed 7 May 2009 and Additional Information, Parliamentary Library Client Memorandum Judicial appointment, termination and retirement age in like countries, 9 April 2009.

[8]        Federal Court of Australia website accessed April 2009: http://www.fedcourt.gov.au/contacts/contacts_other_complaints.html.

[9]        Family Court of Australia website accessed 7 May 2009: http://www.familycourt.gov.au/wps/wcm/connect/FCOA/home/about/Organisation/Judges/FCOA_co_Judges.

[10]      Family Court publication Complaints Fact Sheet accessed on 8 May 2009: http://www.familycourt.gov.au/wps/wcm/resources/file/ebc64b455b4961c/Complaints_feedback.htm.

[11]      The Attorney‑General, the Hon. Robert McClelland MP, media release, Rudd Government to Reform Federal Courts, 5 May 2009.

[12]      A copy of Article 14 of the International Covenant on Civil and Political Rights, an extract from the United National Human Rights Committee, General Comment No 32, and the United Nations Basic Principles on the Independence of the Judiciary appear at Appendix 3 to this report.

[13]      Human Rights Law Resource Centre, Submission j1, p. 27.

[14]      Human Rights Law Resource Centre, Submission j1, p. 12.

[15]      Human Rights Law Resource Centre, Submission j1, p 27.

[16]      As quoted in the Human Rights Law Resource Centre, Submission j1, p. 27.

[17]      As quoted in the Human Rights Law Resource Centre, Submission j1, pp 27 and 28.

Chapter 3 - Judicial appointment

[1]        Submission J2, p 2.

[2]        Submission J2, p. 2 quoting Murray Gleeson, Embracing Independence (Local Courts of New South Wales Annual Conference, Sydney, 2 July 2008) at p. 3.

[3]        Submission 4, Supplementary Submission, p.1.

[4]        Simon Evans and John Williams, Appointing Australian Judges: A New Model, Sydney Law Review [Vol 30:295 2008], p. 295.

[5]        Simon Evans and John Williams, Appointing Australian Judges: A New Model, Sydney Law Review [Vol 30:295 2008], p. 301.

[6]        Attorney-General's Department, Answers to Questions on Notice, 28 September 2009, pp 2 and 3.

[7]        Attorney-General's Department, Answers to Questions on Notice, 28 September 2009, p. 2.

[8]        See for example, Law Society of New South Wales, Submission 7, p. 1, and Association of Australian Magistrates, Submission 4, Supplementary Submission, p. 5.

[9]        Submission 11, p. 5.

[10]      Justice McColl, Committee Hansard, 11 June 2009, p. 3.

[11]      Justice McColl, Committee Hansard, 11 June 2009, p. 3.

[12]      Flinders University Judicial Research Project, Submission J4, p 2.

[13]      Flinders University Judicial Research Project, Submission J4, p. 3.

[14]      Flinders University Judicial Research Project, Submission J4, p. 3.

[15]      Flinders University Judicial Research Project, Submission J4, p. 4.

[16]      Law Society of New South Wales, Submission 7, p. 1.

[17]      Law Society of New South Wales, Submission 7, p. 1.

[18]      International Commission of Jurists, Australia, Submission 5, p. 3.

[19]      International Commission of Jurists, Australia, Submission 5, p. 4.

[20]      International Commission of Jurists, Australia, Submission 5, p. 3.

[21]      Law Council of Australia, Submission 11, Attachment A, p. 1.

[22]      Law Society of New South Wales, Submission 7, p. 1.

[23]      Law Society of New South Wales, Submission 7, attached Selection Process for the Judiciary Policy Document, p. 2.

[24]      Mr Schokman, Committee Hansard, 12 June 2009, p. 95.

[25]      Submission 1, p. 2.

[26]      Annexure B to Submission 11, p. 9, Law Council Submission to SCAG Consultation on a Proposed National Judicial Framework, 20 April 2008, p. 27.

[27]      Federal Court of Australia, Submission 3, p. 1.

[28]      Submission 8, p. 5. See also the evidence of Chief Justice Bryant to the committee: Committee Hansard, 12 June 2009, p. 65. Further support is found generally in Submission 4, Supplementary Submission, provided by the Association of Australian Magistrates.

[29]      See for example, Submission 4, Supplementary Submission, p. 3 and Law Council of Australia, Submission 11, p. 4.

[30]      Committee Hansard, 12 June 2009, p. 32.

[31]      Submission J2, p. 4.

[32]      Submission 1, p. 1.

[33]      Professor Williams, Committee Hansard, 11 June 2009, p. 22.

[34]      As quoted in Simon Evans and John Williams, Appointing Australian Judges: A New Model, Sydney Law Review [Vol 30:295 2008], p. 299.

[35]      S Gaegler, Judicial Appointment (2008) 30 Sydney Law Review 159.

[36]      Ms Kok, Committee Hansard, 12 June 2009, p. 71.

[37]      Submission 1, p. 7.

[38]      Gilbert + Tobin Centre of Public Law, Submission 1, p. 8.

[39]      Submission 5, p. 1.

[40]      Michael McHugh, Women Justices for the High Court , Speech delivered at the High Court dinner hosted by the West Australian Law Society, 27 October 2004, quoted in the International Commission of Jurists Australia submission to this inquiry, Submission 5, p.2.

[41]      Submission 7, p. 1 and Policy Document, p. 1.

[42]      Submission 11, pp 19 and 20.

[43]      Mr Colbran, Committee Hansard, 12 June 2009, p. 25.

[44]      Simon Evans and John Williams, Appointing Australian Judges: A New Model, Sydney Law Review [Vol 30:295 2008], p. 313.

[45]      Attorney-General's Department, Answers to Questions on Notice, 28 September 2009, p. 2.

[46]      Ms Kok, Committee Hansard, 12 June 2009, pp 71 and 72 and Submission 4, Supplementary Submission, p 7.

[47]      Attorney-General's Department, Answers to Questions on Notice, 28 September 2009, p. 2.

[48]      Attorney-General's Department, Answers to Questions on Notice, 28 September 2009, p. 3.

[49]      The policy documents were discussed in more detail earlier in the chapter. A copy of them is at Appendix 5 to this report.

[50]      Submission 11, Annexure A: Law Council of Australia Policy on the Process of Judicial Appointments, p. 17.

[51]      Justice McColl, Committee Hansard , 11 June 2009, p. 5.

[52]      Flinders University Judicial Research Project, Submission J4, p. 7.

[53]      Submission 1, p. 3.

[54]      Committee Hansard, 13 July 2009, pp 2 and 3.

[55]      Submission 1, p. 1. Professor George Williams, who is the Anthony Mason Professor of Law at the University of New South Wales, and Foundation Director of the Gilbert + Tobin Centre of Public Law, has also expressed this view elsewhere, including in the Sydney Morning Herald of July 14, 2009 at http://ww.smh.com.au/action/printArticle?id=630830.

[56]      Submission 1, p. 1.

[57]      Submission 1, p. 2. See also Committee Hansard, 11 June 2009, p. 21. This is similar to the view expressed by Mr Schokman and Mr Lynch of the Human Rights Law Reform Centre, Committee Hansard, 12 June 2009, p. 98.

[58]      Committee Hansard, 12 June 2009, p. 96.

[59]      Submission 1, p. 2.

[60]      Submission 1, p. 3.

[61]      Committee Hansard, 11 June 2009, p. 22.

[62]      Committee Hansard, 11 June 2009, p. 22.

[63]      Committee Hansard, 11 June 2009, p. 23. For background, see the material Appendix 4, p. 1.

[64]      Simon Evans and John Williams, Appointing Australian Judges: A New Model, Sydney Law Review [Vol 30:295 2008].

[65]      Simon Evans and John Williams, Appointing Australian Judges: A New Model, Sydney Law Review [Vol 30:295 2008], p. 297.

[66]      Simon Evans and John Williams, Appointing Australian Judges: A New Model, Sydney Law Review [Vol 30:295 2008] p. 304. See also the constitutional discussion at p. 322.

[67]      Simon Evans and John Williams, Appointing Australian Judges: A New Model, Sydney Law Review [Vol 30:295 2008], pp 311 and 312.

[68]      Gilbert + Tobin Centre of Public Law, Submission 1, p. 3.

[69]      Simon Evans and John Williams, Appointing Australian Judges: A New Model, Sydney Law Review [Vol 30:295 2008], p. 326.

[70]      Submission 5, p. 4.

[71]      International Commission of Jurists, Australia, Submission 5, pp. 4 and 5.

[72]      Submission 7, p. 1. While not agreeing that a Judicial Appointments Commission (JAC) is needed in Australia, the committee does not share the view of the Law Society of New South Wales that a public process is a necessary part of selection involving a JAC.  Although it is likely that the general selection criteria and process of a JAC would circulated widely, it is not an inherent requirement of a JAC that individual appointments processes need to be undertaken publicly.

[73]      Mr Staude, Committee Hansard, 13 July 2009, p. 10.

[74]      Simon Evans and John Williams, Appointing Australian Judges: A New Model, Sydney Law Review [Vol 30:295 2008], p. 299.

[75]      Simon Evans and John Williams, Appointing Australian Judges: A New Model, Sydney Law Review [Vol 30:295 2008], p. 311.

[76]      Quoting Professor Williams' view, Committee Hansard, 11 June 2009, p. 29.

[77]      See the Parliament of Tasmania, Legislative Council Select Committee interim report on Public Sector Executive Appointments, April 2009, accessed at:   http://www.parliament.tas.gov.au/ctee/Council/Reports/PSE.rep.090402.InterimReport%20Body.ch.008.pdf

Chapter 4 - Terms of appointment

[1]        See section 72 of the The Constitution.

[2]        Standing Committee on Constitutional and Legal Affairs, Report on retiring age for Commonwealth judges, Parliamentary Paper No. 414/1976.

[3]        Standing Committee on Constitutional and Legal Affairs, Report on retiring age for Commonwealth judges, Parliamentary Paper No. 414/1976, p. 14.

[4]        Standing Committee on Constitutional and Legal Affairs, Report on retiring age for Commonwealth judges, Parliamentary Paper No. 414/1976, p. 3.

[5]        Senate Standing Committee on Constitutional and Legal Affairs, Parliamentary Paper No. 414/ 1976, p. 11.

[6]        Law Council of Australia, Submission 11, p. 6.

[7]        Committee Hansard, 12 June 2009, p. 17.

[8]        International Commission of Jurists, Victoria, Submission J2, p. 4.

[9]        For example, see the Gilbert + Tobin Centre of Public Law, Submission 1, p. 6, Law Council of Australia, Submission 11, pp 5 and 6, and the Human Rights Law Resource Centre, Submission j1, p. 31. The committee did receive some evidence to the contrary: see Hon Dr Bob Such MP, Submission 2, p. 2.

[10]      Law Council of Australia, Submission 11, p. 5.

[11]      International Commission of Jurists, Victoria, Submission J2, p. 4.

[12]      Mr Alexander Street SC, Submission 14, p. 1.

[13]      Gilbert and Tobin Centre of Public Law, Submission 1, p. 6.

[14]      Gilbert and Tobin Centre of Public Law, Submission 1, p. 6.

[15]      Gilbert and Tobin Centre of Public Law, Submission 1, p. 6.

[16]      International Commission of Jurists, Australia, Submission 5, pp 5 and 6.

[17]      Mr Alexander Street SC, Submission 14, p. 1. See also the evidence of Chief Federal Magistrate Pascoe, Committee Hansard, 11 June 2009, p. 50.

[18]      Chief Justice Marilyn Warren of the Supreme Court of Victoria, Submission j3, pp 3 and 4.

[19]      Former Justice Michael Kirby, Neville Wran – A Lawyer Politician – Reflections on Law Reforms and the High Court of Australia, Inaugural Neville Wran Lecture, The Parliament of New South Wales, Thursday 13 November 2008, p. 39.

[20]      Family Court and Federal Magistrates Court, Submission 8, p. 7.

[21]      Justice Lasry, Committee Hansard, 12 June 2009, p. 2.

[22]      International Commission of Jurists Victoria, Submission J2, p. 4.

[23]      Flinders University Judicial Research Project, Submission J4, p. 16.

[24]      Flinders University Judicial Research Project, Submission J4, p. 18.

[25]      Flinders University Judicial Research Project, Submission J4, p. 18.

[26]      Committee Hansard , 13 July 2009, p. 3.

[27]      Committee Hansard, 11 June 2009, p. 37.

[28]      Committee Hansard, 11 June 2009, p. 37.

[29]      Family Court and Federal Magistrates Court, Submission 8, p. 8.

[30]      International Commission of Jurists, Victoria, Submission J2, p. 5.

[31]      Law Council of Australia, Submission 11, p. 7.

[32]      Law Council of Australia, Submission 11, p. 9.

[33]      For example, see Justice McColl, Committee Hansard, 11 June 2009, p. 4, International Commission of Jurists, Victoria, Submission j2, p. 5 and Law Council of Australia, Submission 11, p. 7.

[34]      Additional Information, Justice Ronald Sackville, letter as chair of the Judicial Conference of Australia to Attorney-General of Victoria dated 1 November 2004, tabled at public hearing by the Judicial Conference of Australia, Thursday 11 June 2009, p. 1.

[35]      See generally Additional Information, Justice Ronald Sackville, letter as chair of the Judicial Conference of Australia to Attorney-General of Victoria dated 1 November 2004, tabled at public hearing by the Judicial Conference of Australia, Thursday 11 June 2009.

[36]      For example, see section 11, County Court Act 1958 (Vic), Appointment of acting judges.

[37]      Law Council of Australia, Submission 11, p. 8.

[38]      Law Council of Australia, Submission 11, p. 8.

[39]      Justice Ronald Sackville, Acting Judges and Judicial Independence, opinion article published by The Age, 28 February 2005, as quoted in Law Council of Australia, Submission 11, p. 8.

[40]      Mr Staude, Committee Hansard, 13 July 2009, p. 11.

[41]      Public Interest Advocacy Group, Submission 10, p. 2.

[42]      Public Interest Advocacy Group, Submission 10, p. 3.

[43]      For example, see the Law Council of Australia, Submission 11, p. 7.

[44]      Committee Hansard, 12 June 2009, p. 96.

[45]      Justice McColl, Committee Hansard, 11 June 2009, p. 18.

[46]      Committee Hansard, 13 July 2009, p. 2.

[47]      International Commission of Jurists, Victoria, Submission J2, p. 4.

[48]      Law Council of Australia, Submission 11, p. 9.

[49]      Chief Justice Warren, Supreme Court of Victoria, Submission J3, p. 4.

[50]      Gilbert and Tobin Centre of Public Law, Submission 1, p. 6.

[51]      Gilbert and Tobin Centre of Public Law, Submission 1, p. 6.

[52]      Gilbert and Tobin Centre of Public Law, Submission 1, p. 6.

[53]      Committee Hansard, 13 July 2009, p. 3.

[54]      Justice McColl, Committee Hansard, 11 June 2009, p. 4.

[55]      Professor Roach Anleu, Committee Hansard, 12 June 2009, p. 39.

[56]      Justice McColl, Committee Hansard, 11 June 2009, p. 4.

[57]      Committee Hansard, 11 June 2009, p. 18.

[58]      Family Court and Federal Magistrates Court, Submission 8, p. 7.

[59]      Family Court and Federal Magistrates Court, Submission 8, pp 7 and 8. The submission further noted that there is statutory provision for 'appointments to the FMC [to] be made on a part-time basis where that is specified in the commission' and that 'the office of the Chief Federal Magistrate is held on a full-time basis': Submission 8, p. 8.

[60]      Mr Lynch, Committee Hansard, 12 June 2009, pp 96 and 97.

[61]      Committee Hansard, 11 June 2009, p. 36.

[62]      Committee Hansard , 13 June 2009, p. 52.

[63]      Mr Alexander Street SC, Submission 14, p. 1.

[64]      Family Court and Federal Magistrates Court, Submission 8, p. 6.

[65]      Family Court and Federal Magistrates Court, Submission 8, p. 6.

[66]      The issue of concern about models where fiscal responsibility is split between a court and an executive government department was raised by the Chief Justice of the Supreme Court of Victoria, Submission J3, p. 2.

[67]      Chief Justice of the Supreme Court of Victoria, Submission J3, p. 3.

[68]      Public Interest Advocacy Group, Submission 10, p. 2.

[69]      International Commission of Jurists, Victoria, Submission J2, pp 3 and 4.

[70]      Annexure B to Submission 11, p. 9, Law Council Submission to SCAG Consultation on a Proposed National Judicial Framework, 20 April 2008, p. 29.

[71]      Annexure B to Submission 11, p. 9, Law Council Submission to SCAG Consultation on a Proposed National Judicial Framework, 20 April 2008, p. 29.

Chapter 5 - Jurisdictional issues – the interface between the federal and state judicial systems

[1]        Committee Hansard, 12 June 2009, p. 12.

[2]        Registrar and Chief Executive Officer, Federal Court of Australia, Submission 3, p. 2.

[3]        International Commission of Jurists, Victoria, Submission J2, p. 8.

[4]        Attorney-General's Department, Answers to Questions on Notice, 28 September 2009, p. 6.

[5]        Attorney-General's Department, Answers to Questions on Notice, 28 September 2009, p. 6.

[6]        Attorney-General's Department, Answers to Questions on Notice, 28 September 2009, p. 6.

[7]        Law Council of Australia, Submission 11, p. 9.

[8]        Annexure B to Submission 11, p. 9, Law Council Submission to SCAG Consultation on a Proposed National Judicial Framework, 20 April 2008, p. 25.

[9]        Annexure B to Submission 11, p. 9, Law Council Submission to SCAG Consultation on a Proposed National Judicial Framework, 20 April 2008, p. 25.

[10]      Annexure B to Submission 11, p. 9, Law Council Submission to SCAG Consultation on a Proposed National Judicial Framework, 20 April 2008, p. 25.

[11]      Annexure B to Submission 11, p. 9, Law Council Submission to SCAG Consultation on a Proposed National Judicial Framework, 20 April 2008, pp 25 and 26.

[12]      Mr Colbran, Committee Hansard, 12 June 2009, p. 22.

[13]      Justice McColl, Committee Hansard, 11 June 2009, p. 3.

[14]      Committee Hansard, 11 June 2009, p.14.

[15]      The model protocol was raised with the committee and tabled by Justice McColl, see Committee Hansard, 11 June 2009, p. 4 and following. Justice McColl explained that the model protocol 'was developed following the delivery of a paper to the 2005 Judicial Conference annual conference on judicial exchange by Justice Robert French, then a judge of the Federal Court of Australia. The model was approved by the Judicial Conference and the Council of Chief Justices. I understand it was distributed to the members of the Standing Committee of Attorneys-General in May 2009 and some but not all states and territories have approved it. It is still a current matter with the standing committee.' The object of the protocol as quoted in the body of this report is outlined at Clause 1, Model Protocol between heads of Jurisdiction for Short Term Judicial Exchange, tabled at public hearing by the Judicial Conference of Australia, Thursday 11 June 2009.

[16]      See generally, Model Protocol between heads of Jurisdiction for Short Term Judicial Exchange, tabled at public hearing by the Judicial Conference of Australia, Thursday 11 June 2009.

[17]      Justice French, Judicial Exchange – Debalkanising the Courts, Judicial Conference of Australia, 2005 Colloquium Papers, 4 September 2005.

[18]      French J, Judicial Exchange – Debalkanising the Courts, Judicial Conference of Australia, 2005 Colloquium Papers, 4 September 2005, pp 3 and 4.

[19]      French J, Judicial Exchange – Debalkanising the Courts, Judicial Conference of Australia, 2005 Colloquium Papers, 4 September 2005, p. 5.

[20]      French J, Judicial Exchange – Debalkanising the Courts, Judicial Conference of Australia, 2005 Colloquium Papers, 4 September 2005, p. 26.

[21]      Committee Hansard, 11 June 2009, p. 13.

[22]      International Commission of Jurists, Victoria, Submission J2, p. 8.

[23]      International Commission of Jurists, Victoria, Submission J2, p.8.

[24]      Annexure B to Submission 11, p. 9, Law Council Submission to SCAG Consultation on a Proposed National Judicial Framework, 20 April 2008, p. 30.

[25]      Annexure B to Submission 11, p. 9, Law Council Submission to SCAG Consultation on a Proposed National Judicial Framework, 20 April 2008, p. 30.

[26]      French J, Judicial Exchange – Debalkanising the Courts, Judicial Conference of Australia, 2005 Colloquium Papers, 4 September 2005, p. 31.

[27]      Committee Hansard , 11 June 2009, p. 12.

[28]      Annexure B to Submission 11, p. 9, Law Council Submission to SCAG Consultation on a Proposed National Judicial Framework, 20 April 2008, p. 24.

[29]      Law Council of Australia, Submission 11, p. 10.

[30]      Gilbert + Tobin Centre of Public Law, Submission 1, p. 9.

[31]      Gilbert + Tobin Centre of Public Law, Submission 1, p. 9.

[32]      Chief Justice Supreme Court of Victoria, Submission J3, p. 4.

[33]      As quoted in Gilbert + Tobin Centre of Public Law, Submission 1, p. 10.

[34]      Gilbert + Tobin Centre of Public Law, Submission 1, p. 9.

[35]      Additional Information, Attorney-General's Department, Answers to Questions on Notice,
28 September 2009, p. 6.

[36]      Registrar and Chief Executive, Federal Court of Australia, Submission 3, p. 1.

[37]      Family Court and Federal Magistrates Court, Submission 8, p. 12.

[38]      Family Court and Federal Magistrates Court, Submission 8, p. 9.

[39]      Family Court and Federal Magistrates Court, Submission 8, p. 9.

[40]      Registrar and Chief Executive officer, Federal Court of Australia, Submission 3, p. 2.

[41]      Family Court and Federal Magistrates Court, Submission 3, p. 2. Section 75 of The Constitution gives the High Court original jurisdiction in all matters:

(i)                 Arising under any treaty;

(ii)               Affecting consuls or other representatives of other countries;

(iii)             In which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party;

(iv)             Between States, or between residents of different States, or between a State and a resident of another State;

(v)               In which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth.

Section 76 of the Constitution provides that, 'The Parliament may make laws conferring original jurisdiction on the High Court in any matter-

(i)                 Arising under this Constitution, or involving its interpretation;

(ii)               Arising under any laws made by the Parliament;

(iii)             Of Admiralty and maritime jurisdiction;

(iv)             Relating to the same subject-matter claimed under the laws of different States.

Section 39B of the Judiciary Act 1903 (Cth) is reproduced at Appendix 7 to this report.

Chapter 6 - Judicial Complaints Handling

[1]        Flinders University Judicial Research Project, Submission J4, p. 9.

[2]        International Commission of Jurists, Victoria, Submission J2, p.3.

[3]        Gilbert + Tobin Centre of Public Law, Submission 1, p. 3.

[4]        The Hon Duncan Kerr SC MP, The removal of federal justices: qui custodio custodis?, 2005 Australian Institute of Administrative Law, Administrative Law Forum, Canberra, 30 June 2005, p. 9.

[5]        Chief Justice of the Supreme Court of Victoria, Submission J3, p.3.

[6]        Gilbert and Tobin Centre of Public Law, Submission 1, p. 4.

[7]        Registrar and Chief Executive Officer, Federal Court of Australia, Submission 3, p. 3.

[8]        For example Queensland Magistrates Act 1991 (Qld), ss 43-46 and South Australia Magistrates Act 1983 (SA), ss 10-12 have this provision: The Laws of Australia (Thomson), para [19.4.430] quoted in Additional Information, Parliamentary Library, Client Memorandum, Complaints Against Judges, 6 November 2009, p. 10.

[9]        Justice McColl, Committee Hansard, 13 July 2009, p. 2.

[10]      Additional Information, Parliamentary Library, Client Memorandum, Complaints Against Judges, 6 November 2009, p. 8.

[11]      The following information is taken from Family Court and Federal Magistrates Court, Submission 8, pp 12 to 15.

[12]      Family Court and Federal Magistrates Court, Submission 8, p. 15.

[13]      Family Court and Federal Magistrates Court, Submission 8, p. 15.

[14]      Additional information, Parliamentary Library Client Memorandum Complaints Against Judges, 6 November 2009, pp 9 and 10.

[15]      Law Council of Australia, Submission 11, p. 10.

[16]      Law Council of Australia, Submission 11, p. 10.

[17]      Additional Information, Chief Justice Wayne Martin, letter to the then WA Attorney‑General the Hon Jim McGinty MLA, dated 10 November 2006, p. 2.

[18]      Chief Justice Bryant, Committee Hansard, 12 June 2009, p. 58.

[19]      Family Court and Federal Magistrates Court, Submission 8, p. 15.

[20]      Committee Hansard, 11 June 2009, p. 43.

[21]      Mr Pascoe, Committee Hansard, 11 June 2009, p. 43.

[22]      Mr Pascoe, Committee Hansard, 11 June 2009, p. 46.

[23]      Chief Justice Bryant, Committee Hansard, 12 June 2009, p. 57.

[24]      Submission 32, p. 2.

[25]      Committee Hansard, 12 June 2009, p. 90. The committee notes that a number of witnesses expressed the view that there are remedies available in the matter of a judge assisting with writing a submission and then sitting in judgment on the case. For example, see the evidence of Justice Lasry and Mr McGowan of the International Commission of Jurists, Victoria, Committee Hansard, 12 June 2009, pp 10 and 11.

[26]      Committee Hansard, 11 June 2009, p. 62.

[27]      Committee Hansard, 11 June 2009, p. 63.

[28]      For example, see the evidence of Mr Pascoe, Committee Hansard, 11 June 2009, p. 43 that, 'Sometimes the view is expressed that the court receives the complaint about the court and does not deal with it in the same way that a truly external party would do.'

Chapter 7 - A Judicial Complaints Commission?

[1]        Former Chief Justice of the High Court the Hon. Sir Anthony Mason AC KBE, Judicial Accountability, Judicial Conduct and Ethics Conference papers, Dublin, Ireland, 6 May 2000, p. 112.

[2]        Flinders University Judicial Research Project, Submission J4, p. 11.

[3]        Law Society of New South Wales, Submission 7, p. 1.

[4]        Judicial Commission of New South Wales, From controversy to credibility: 20 years of the Judicial Commission of New South Wales, 2008, p. 1.

[5]        Former Chief Justice of the High Court the Hon. Sir Anthony Mason AC KBE, Judicial Accountability, Judicial Conduct and Ethics Conference papers, Dublin, Ireland, 6 May 2000, p. 111.

[6]        Additional Information, Mr Ernest Schmatt PSM, Chief Executive, The Judicial Commission of New South Wales, received by the committee on 10 June 2009, p. 3.

[7]        Mr Schmatt, Committee Hansard, 11 June 2009, p. 51.

[8]        As quoted in the Judicial Commission of New South Wales, From controversy to credibility: 20 years of the Judicial Commission of New South Wales, 2008, p. 3.

[9]        Additional Information, Mr Ernest Schmatt PSM, Chief Executive, The Judicial Commission of New South Wales and Complaints against judicial officers both received by the committee on 10 June 2009.

[10]      This description is drawn from information in the Australian Law Reform Commission Discussion Paper 62, Review of the Federal Civil Justice System, paragraphs 3.140 to 3.147; Additional Information, Mr Ernest Schmatt PSM, Chief Executive, The Judicial Commission of New South Wales, received by the committee on 10 June 2009; the Judicial Officers Act 1986 (NSW); and the evidence given to the committee by Mr Ernest Schmatt, Committee Hansard, 11 June 2009, p. 52.

[11]      Judicial Officers Act 1986 (NSW), s 22. A community representative must be a person of high standing in the community nominated by Parliament in accordance with Schedule 2A: s 22(2)(b). The inclusion of a community representative on the Conduct Division occurred in July 2007 with the commencement of the Judicial Officers Amendment Act 2007 (NSW).

[12]      Mr Schmatt, Committee Hansard, 11 June 2009, p. 56.

[13]      Committee Hansard, 11 June 2009, p. 51.

[14]      Mr Schmatt, Committee Hansard, 11 June 2009, p. 54.

[15]      Taken from Mr Schmatt's evidence to the committee, Committee Hansard, 11 June 2009, p. 52.

[16]      This point was made in evidence by Mr Schmatt: Committee Hansard, 11 June 2009, p. 62.

[17]      Committee Hansard, 11 June 2009, p. 66.

[18]      Additional Information, Mr Ernest Schmatt, PSM, Chief Executive Judicial Commission of New South Wales, The Judicial Commission of New South Wales, tabled on 10 June 2009, p. 7.

[19]      Additional Information, Mr Ernest Schmatt, PSM, Chief Executive Judicial Commission of New South Wales, The Judicial Commission of New South Wales, tabled on 10 June 2009, pp 7 and 8.

[20]      Additional Information, Mr Ernest Schmatt, PSM, Chief Executive Judicial Commission of New South Wales, The Judicial Commission of New South Wales, tabled on 10 June 2009, p. 8.

[21]      Additional Information, Mr Ernest Schmatt, PSM, Chief Executive Judicial Commission of New South Wales, The Judicial Commission of New South Wales, tabled on 10 June 2009, p. 4.

[22]      Additional Information, Mr Ernest Schmatt, PSM, Chief Executive Judicial Commission of New South Wales, The Judicial Commission of New South Wales, tabled on 10 June 2009, p. 6.

[23]      Mr Schmatt, Committee Hansard, 11 June 2009, p. 64.

[24]      Mr Schmatt, Committee Hansard, 11 June 2009, p. 56.

[25]      Committee Hansard, 11 June 2009, p. 6.

[26]      Committee Hansard, 11 June 2009, p. 39.

[27]      Chief Justice Martin is also the current Chair of the Council of the National Judicial College of Australia.

[28]      The Bill was referred to in Additional Information, Chief Justice Wayne Martin, letter to the then WA Attorney‑General the Hon Jim McGinty MLA, dated 10 November 2006, p. 6.

[29]      Committee Hansard, 13 July 2009, p. 10.

[30]      Investigating complaints and concerns regarding judicial conduct, Discussion Paper, Department of Justice, State Government of Victoria, November 2009, foreword.

[31]      Mr Schmatt, Committee Hansard, 11 June 2009, p. 63.

[32]      Committee Hansard, 13 June 2009, p. 57.

[33]      Committee Hansard, 11 June 2009, pp 39 and 40.

[34]      Committee Hansard, 11 June 2009, p. 42.

[35]      Mr Peter Faris QC, Submission 12, p. 2.

[36]      Committee Hansard, 12 June 2009, p. 83.

[37]      Committee Hansard, 12 June 2009, p. 59.

[38]      Committee Hansard, 12 June 2009, p. 60.

[39]      Committee Hansard, 11 June 2009, p. 33.

[40]      Additional Information, Attorney-General's Department, Answers to Questions on Notice, 28 September 2009, p. 1.

[41]      Additional Information, Attorney-General's Department, Answers to Questions on Notice, 28 September 2009, p. 1.

[42]      Law Council of Australia, Submission 11, p. 11.

[43]      Law Society of New South Wales, Submission 7, p. 1.

[44]      Committee Hansard, 12 June 2009, p. 6.

[45]      Committee Hansard, 12 June 2009, p. 9.

[46]      Mr Colbran, Committee Hansard, 12 June 2009, p. 29.

[47]      Law Council of Australia, Submission 11, p. 16. Chief Justice Bryant informed the committee that a recent Council of Chief Justices overwhelmingly expressed the view that there should not be a national judicial commission: Committee Hansard, 12 June 2009, p. 64.

[48]      Law Council of Australia, Submission 11, p. 12.

[49]      Law Council of Australia, Submission 11, p. 16.

[50]      Mr Colbran, Committee Hansard, 12 June 2009, p. 28.

[51]      Committee Hansard, 11 June 2009, p. 33.

[52]      Committee Hansard, 11 June 2009, p. 34.

[53]      As quoted in the Judicial Commission of New South Wales, From controversy to credibility: 20 years of the Judicial Commission of New South Wales, 2008, p. 3.

[54]      Mr Peter Faris QC, Submission 12, p. 2.

[55]      Committee Hansard, 17 November 2009, p. 6.

[56]      Summarised from observations in a paper given by former Chief Justice of the High Court the Hon. Sir Anthony Mason AC KBE, Judicial Accountability, Judicial Conduct and Ethics Conference papers, Dublin Ireland, 6 May 2000, p. 111.

[57]      Former Chief Justice of the High Court the Hon. Sir Anthony Mason AC KBE, Judicial Accountability, Judicial Conduct and Ethics Conference papers, Dublin Ireland, 6 May 2000, p. 111.

[58]      Gilbert + Tobin Centre of Public Law, Submission 1, p. 8.

[59]      Former Chief Justice of the High Court the Hon. Sir Anthony Mason AC KBE, Judicial Accountability, Judicial Conduct and Ethics Conference papers, Dublin Ireland, 6 May 2000, p. 114.

[60]      Additional Information, Attorney-General's Department, Answers to Questions on Notice, 28 September 2009, p. 1.

[61]      Committee Hansard, 17 November 2009, p. 3.

[62]      Committee Hansard, 17 November 2009, p. 5.

[63]      Committee Hansard, 17 November 2009, p. 6.

[64]      Committee Hansard, 17 November 2009, p. 6.

[65]      Registrar and Chief Executive, Federal Court of Australia, Submission 3, p. 3.

[66]      Law Society of New South Wales, Submission 7, p. 1.

[67]      Former Chief Justice of the High Court the Hon. Sir Anthony Mason AC KBE, Judicial Accountability, Judicial Conduct and Ethics Conference papers, Dublin Ireland, 6 May 2000, p. 109.

[68]      Former Chief Justice of the High Court the Hon. Sir Anthony Mason AC KBE, Judicial Accountability, Judicial Conduct and Ethics Conference papers, Dublin Ireland, 6 May 2000, p. 110.

[69]      Committee Hansard, 11 June 2009, p. 45.

[70]      Committee Hansard, 11 June 2009, p. 46.

[71]      Additional Information, Attorney-General's Department, Answers to Questions on Notice, 28 September 2009, p. 1.

[72]      Committee Hansard, 11 June 2009, p. 69.

[73]      Committee Hansard, 12 June 2009, p. 18.

[74]      Committee Hansard, 12 June 2009, p. 18.

[75]      Attorney-General's Department, Answers to Questions on Notice, 28 September 2009, p. 1.

[76]      Committee Hansard, 17 November 2009, p. 6.

[77]      Former Chief Justice of the High Court the Hon. Sir Anthony Mason AC KBE, Judicial Accountability, Judicial Conduct and Ethics Conference papers, Dublin Ireland, 6 May 2000, p. 114.

[78]      For example, see: the Hon Duncan Kerr SC MP, The removal of federal justices: qui custodio custodis?, 2005 AIAL Administrative Law Forum, Canberra, 30 June 2005.

[79]      Committee Hansard, 11 June 2009, p. 8.

[80]      Committee Hansard, 11 June 2009, p. 6.

[81]      Law Council of Australia, Submission 11, p. 10.

[82]      Committee Hansard, 11 June 2009, p. 7.

[83]      Committee Hansard, 11 June 2009, p. 34.

[84]      In November 2009 the ACT government ordered a judicial inquiry into the conduct of the Chief Magistrate as a result of two 'serious complaints' of misconduct. For example, see http://www.sbs.com.au/news/article/1128892/latest-from-wire/ (accessed 26 November 2009).

Appendix 4 - Outline of overseas judicial complaint handling and appointments bodies

[1]        http://www.judiciary.gov.uk/publications_media/judicial_views_responses/index.htm.

[2]        England and Wales Judicial Appointments Commission website accessed on 7 May 2009 http://www.judicialappointments.gov.uk/about/about.htm.

[3]        England and Wales Judicial Appointments Commission website accessed on 7 May 2009 http://www.judicialappointments.gov.uk/about/about.htm.

[4]        England and Wales Office of Judicial Complaints website: http://www.judicialcomplaints.gov.uk/about/about.htm accessed 7 May 2009.

[5]        England and Wales Office for Judicial Complaints website: http://www.judicialcomplaints.gov.uk/complaints/complaints_what.htm accessed 7 May 2009.

[6]        Judiciary of England and Wales website: http://www.judiciary.gov.uk/learning_resources/quiz_myth/quiz_myth.htm accessed 7 May 2009.

[7]        Judiciary of England and Wales website: http://www.judiciary.gov.uk/faqs/faqs_conduct.htm accessed 7 May 2009.

[8]        Judiciary of England and Wales website: http://www.judiciary.gov.uk/learning_resources/quiz_myth/quiz_myth.htm accessed 7 May 2009.

[9]        England and Wales Office for Judicial Complaints website: http://www.judicialcomplaints.gov.uk/complaints/complaints.htm accessed 7 May 2009.

[10]       Material from this section was obtained from the England and Wales Judicial Appointments and Conduct Ombudsman website http://www.judicialombudsman.gov.uk/index.htm accessed on 7 May 2009.

[11]       England and Wales Judicial Appointments and Conduct Ombudsman, Conduct booklet, p. 9.

[12]       Canadian Officer of the Commissioner for Federal Judicial Affairs website: http://www.fja.gc.ca/fja-cmf/ja-am/com/mem-eng.html accessed 6 May 2009.

[13]       Canadian Office of the Commissioner for Federal Judicial Affairs, various website information accessed via: http://www.fja.gc.ca/fja-cmf/ja-am/com/mem-eng.html on 6 May 2009.

[14]       Supreme Court of Canada website accessed 6 May 2009:

http://www.scc-csc.gc.ca/faq/faq/index-eng.asp#f13 .

[15]       Canadian Judicial Council website accessed on 6 May 2009: www.cjc-ccm.gc.ca/english/about_en.asp?selMenu=about_mp_judgesact_en.asp. See also www.cjc-ccm.gc.ca/english/resource_en.asp?selMenu=resource_courtsystem_en.asp#ptc.

[16]       Canadian Judicial Council website accessed on 6 May 2009: http://www.cjc-ccm.gc.ca/english/about_en.asp?selMenu=about_mandate_en.asp and http://www.cjc-ccm.gc.ca/english/conduct_en.asp?selMenu=conduct_complaint_en.asp#wkcc.

[17]       Canadian Judicial Council website accessed on 6 May 2009: http://www.cjc-ccm.gc.ca/english/conduct_en.asp?selMenu=conduct_inquiry_en.asp.

[18]       Canadian Judicial Council , publications,1998 accessible at: http://www.cjc-ccm.gc.ca/cmslib/general/news_pub_judicialconduct_Principles_1998_en.pdf.

[19]       Canadian Judicial Council website accessed on 6 May 2009: http://www.cjc-ccm.gc.ca/english/about_en.asp?selMenu=about_committees_en.asp.

[20]       Canadian Judicial Council website accessed on 6 May 2009: http://www.cjc-ccm.gc.ca/english/about_en.asp?selMenu=about_committees_en.asp.

[21]       The material for this section was obtained from the United States of America Courts website: http://www.uscourts.gov/faq.html accessed 7 May 2009.

[22]       The material for this section was obtained from the New Zealand Ministry of Justice website accessed 7 May 2009: http://www.justice.govt.nz/pubs/other/pamphlets/2003/judicial-appointments/high-court-judge.html.

[23]       The material from this section was drawn from publications discussing the appointment process for the Office of High Court Judges, Office of Associate Judges of the High Court and Office of District Court Judges, all accessible from the website accessed on 7 May 2009: http://www.justice.govt.nz/publications/justice-system/judicial-appointments.

[24]       The material from this section was drawn from publications discussing the appointment process for the Office of High Court Judges, Office of Associate Judges of the High Court and Office of District Court Judges, all accessible from the website accessed on 7 May 2009: http://www.justice.govt.nz/publications/justice-system/judicial-appointments.

[25]       Office of the Judicial Conduct Commissioner, New Zealand, website accessed 7 May 2009: http://www.jcc.govt.nz/template.asp?folder=COMPLAINT_PROCESS.

[26]       Office of the Judicial Complaints Commission, New Zealand, website accessed 7 May 2009: http://www.jcc.govt.nz/template.asp?folder=RECOMMENDING_A_PANEL&lev1=4&lev2=1&no=4.