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.