DISSENTING REPORT BY SENATOR THE HON BILL HEFFERNAN
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) represent
a missed opportunity to address the continued uncertainty regarding processes
for handling complaints about federal judicial officers. In particular, the
events surrounding allegations against the late Justice Lionel Murphy
highlighted the practical difficulties of parliamentary consideration of
judicial misconduct. The bills before the committee do not address these
practical concerns. A standing federal judicial commission to investigate
complaints regarding judicial conduct is a better approach.
Judicial Complaints Bill
1.2
As noted by the scholars from the University of Adelaide Law School, the
Judicial Complaints Bill does not cover complaints made about Justices of the
High Court of Australia (High Court).[1]
In my view, there is no reason amendments could not be made to allow the Chief
Justice of the High Court to assume the responsibilities of a head of
jurisdiction for that court, including dealing with complaints about judicial
conduct. This gap in judicial accountability is highlighted by the fact that
the High Court does not have a public judicial complaints procedure.
1.3
Another failing of the Judicial Complaints Bill is the broad discretion
granted to the head of jurisdiction of each court. As witnesses to the inquiry
highlighted, there are no guiding criteria or standards for heads of
jurisdiction to follow, or apply, in handling complaints about judicial
conduct.[2]
While the Judicial Complaints Bill is intended to promote transparency and
public confidence in the courts regarding the processes for dealing with
judicial complaints, this approach appears to encourage critical decisions to
be made by senior judicial officers about their close working colleagues behind
closed doors. A person with a legitimate complaint about the conduct of a
judicial officer is unlikely to perceive the scheme created by the Judicial
Complaints Bill as increasing public trust in the courts.
Parliamentary Commissions Bill
1.4
My key concern regarding the Parliamentary Commissions Bill is that the
legislation has been constructed around concerns about judicial independence
(rather than assisting the parliament with its constitutional responsibilities)
to the extent that the proposed commissions can be described as 'designed to
fail'. During the inquiry, the consultation undertaken with the federal courts
in developing the legislation was highlighted, but the purpose of the
legislation should be to assist the parliament, not the courts.
1.5
I continue to hold serious concerns about the practical issues involved
in establishing a commission under the bill. The procedural 'high bar' to
establish a commission requires both Houses of Parliament to pass in the same
session a resolution to establish a commission to investigate specified
allegations of a specified judicial officer. In reality, this is unlikely to
occur in the partisan environment of a parliamentary session where the allegations
about a federal judicial officer remain untested and without context. In
particular, one side of politics is likely to have been responsible for
appointment of the judicial officer concerned. Unfortunately, in my opinion,
the temptation to politicise the establishment of a commission is likely to be
too great in most cases. Further, an individual member of parliament, intending
to move a motion to create a commission, may have considerable difficulty
persuading the members of the other House of Parliament of the need for a
commission.
1.6
In this regard, the difficult and drawn out process to establish a parliamentary
commission to investigate allegations regarding the late Justice Murphy is
instructive. As witnesses to the current inquiry highlighted, the Parliamentary
Commissions Bill does nothing to clarify the outstanding issues arising from
that parliamentary commission of inquiry.[3]
For example, the meaning of 'misbehaviour' and the standard of proof to be
applied by a commission in its investigation (and its findings) are not
clarified in the bill. Nor does the bill provide a process to determine these
matters. There is a risk that the importance of the particular case will be
lost in the arguments about definitions and procedure. As a former senator with
direct experience of these issues, the Reverend Professor Michael Tate AO
concluded that 'there would be very few instances which would justify setting
up this huge apparatus with such an inbuilt tendency to be unhelpful'.[4]
1.7
The appointment provisions of the Parliamentary Commissions Bill also
appear to reserve control over the establishment of commissions to the executive.
Under the bill, the Prime Minister nominates the members of a commission, in
consultation with the Leader of the Opposition. This restrictive appointment
process does not provide an equal role for the Senate in selecting members of a
commission and ignores the possibility that the Houses of Parliament may prefer
to establish a commission irrespective of the views of the Prime Minister of
the day.
1.8
The Parliamentary Commissions Bill also handicaps the proposed
commissions by giving them no capacity to summon judicial officers (or former
judicial officers) to give evidence, or the ability to issue search warrants on
the premises of these judicial officers (or former judicial officers). While
constitutional justifications were raised in relation to this matter, it is
clear that these restrictions would inhibit the conduct of investigations by
commissions and limit the value of their findings.
1.9
I am also concerned about the use of evidence taken by a commission
(which is protected by parliamentary privilege under the Parliamentary
Commissions Bill) in subsequent legal proceedings. In the criminal trial against
the late Justice Murphy, witnesses were questioned and cross-examined on
the evidence they had provided to earlier Senate select committees.[5]
Subsequently, however, the Parliamentary Privileges Act 1987 was passed,
to clarify:
In proceedings in any court or tribunal, it is not lawful for
evidence to be tendered or received, questions asked or statements, submissions
or comments made, concerning proceedings in Parliament, by way of, or for the
purpose of —
(a) questioning or relying on the truth, motive, intention or
good faith of anything forming part of those proceedings in Parliament;
(b) otherwise questioning or establishing the credibility,
motive, intention or good faith of any person; or
(c) drawing, or inviting the drawing of, inferences or
conclusions wholly or partly from anything forming part of those proceedings in
Parliament.[6]
1.10
It is clear that there has not been sufficient consideration of parliamentary
privilege issues in the development of the Parliamentary Commissions Bill, and
this is reflected in the recommendations contained in the committee majority's
report. My concern relates to the impact on subsequent legal proceedings
against a judicial officer (or former judicial officer) in circumstances where commission
evidence is protected under parliamentary privilege. If a judicial officer
commits a serious criminal offence, and is removed from office under section 72
of the Constitution (following an extensive investigation by a commission), the
protections of parliamentary privilege should not operate to essentially shield
that judicial officer in subsequent legal proceedings. Will a removed former
judicial officer be able to claim that he cannot receive a fair trial because
potentially exculpatory evidence is contained in a commission's separate report
on sensitive matters? The interaction between parliamentary privilege and the
use of commission evidence in subsequent legal proceedings does not seem to be adequately
addressed in either the provisions of the bill or the explanatory memorandum.
1.11
Finally, the Gilbert and Tobin Centre of Public Law indicated to the
committee that instances of judicial incapacity are more likely to occur than
those of judicial misbehaviour.[7]
However, this is not reflected in the Parliamentary Commissions Bill. For
example, there is no provision under the Parliamentary Commissions Bill for a
commission to request that a judicial officer voluntarily undertake a
confidential medical assessment.
Conclusion
1.12
My prediction is that, when the parliament is next required to consider
a serious complaint about a federal judicial officer, the Parliamentary
Commissions Bill will create more problems than it solves. I also do not
consider that the Judicial Complaints Bill provides a consistent, clear
or an effective system for handling complaints regarding federal judicial
officers. Accordingly, I oppose the passage of both bills.
1.13
We are all human, with human flaws and vulnerabilities, even federal
judicial officers. Appropriate mechanisms for judicial accountability are
needed to balance the protections of judicial independence. Section 72 of the
Constitution provides a role for the parliament to oversight the behaviour and
capacity of the federal judiciary. However, the parliament is not well-equipped
to investigate allegations, and will usually require assistance to fulfil this important
responsibility. In my view, the best model to assist the parliament in this
constitutional duty is a standing judicial commission, modelled on the
successful Judicial Commission of New South Wales. This was the model recommended
by the Senate Legal and Constitutional Affairs References Committee in 2009.[8]
1.14
This approach would provide for a permanent, independent and established
structure to investigate judicial complaints which would provide certainty for
complainants and the judiciary, and would be capable of developing expertise in
conducting investigations into the conduct of judicial officers over time. Such
a standing judicial commission would also allow for other functions to be
undertaken in order to support the federal judiciary, such as judicial
education services and measures to improve consistency in sentencing.
Importantly, a standing commission would ensure an unhelpful political contest
is avoided each time an ad hoc commission is required to be established to
investigate an allegation of judicial misbehaviour or incapacity.
Recommendation 1
That the Senate not pass the Courts Legislation Amendment
(Judicial Complaints) Bill 2012 and the Judicial Misbehaviour and Incapacity
(Parliamentary Commissions) Bill 2012.
Recommendation 2
That the Australian Government establish a federal judicial
commission modelled on the Judicial Commission of New South Wales.
Senator the
Hon Bill Heffernan
Liberal Senator for New South Wales
Navigation: Previous Page | Contents | Next Page