2.1
This chapter considers the evidence received on the Judges' Pensions Amendment (Pension Not Payable for Misconduct) Bill 2020 (the bill). While there was some support for the principles underpinning the bill, widespread concerns were raised about whether the bill would effectively achieve its stated purposes.
2.2
This chapter discusses the following key issues:
the effectiveness of the bill to meets its proposed aims;
the inclusion of the phrase 'serious misconduct' in the bill, with reference to the absence of a definition and the low evidentiary threshold;
potential constitutional concerns; and
the need for additional accountability measures.
2.3
The chapter concludes by providing the committee's view and recommendation.
The effectiveness of the bill
2.4
The bill seeks to address a perceived deficiency in the Judges' Pensions Act to impose on retired judges 'the same consequence for misbehaviour they would experience' if still serving. The Attorney-General's Department (AGD) questioned whether the bill would be effective in achieving that purpose:
Given that the purpose of the Bill is to address the 'inequality' that exists between the treatment of a current serving judge and a retired judge, the application of different tests for the removal of a serving judge (on the basis of 'proved misbehaviour or incapacity' under the Constitution) and the cessation of pensions for a former judge (on the basis of 'serious misconduct' under the Bill), may limit the Bill's effectiveness in achieving that purpose.
2.5
Submitters questioned the effectiveness of the bill as a mechanism to respond to inappropriate conduct from the judiciary. Dr Bruce Arnold explained that Australian law conventionally addresses 'serious misconduct' through criminal and tort law. Therefore, 'it is not necessary to enshrine a new and ineffective mechanism in the form of removal by the legislature of judicial pensions on an instance by instance basis'. Dr Arnold was sceptical that the removal of a judges' pension would act as a deterrent to serious misconduct.
2.6
Victorian Women Lawyers (VWL) questioned the effectiveness of the bill as a 'standalone measure' and suggested a suite of further reforms 'to deter serious misconduct'. The UNSW Law Society argued that the bill would 'not be sufficient alone to achieve its purported aims'. Additional mechanisms suggested in evidence are outlined later in this chapter.
Alternate proposals
2.7
In opposing the bill, Dr Arnold and Mr Angus Thompson suggested alternate mechanisms for the parliament to signal its condemnation of serious misconduct. Dr Arnold argued for a bipartisan statement of condemnation from the parliament which would serve three functions: to demonstrate that no-one is above the law; to signal that the Commonwealth parliament as the key legislature in Australia speaks on behalf of the people in decrying wrongdoing; and 'represents a commitment on the part of MPs to be beyond reproach in their own dealings with ministerial staff, officials and entities seeking a commercial/personal advantage from those in positions of power'.
2.8
Mr Thompson proposed that a competent Commonwealth court could be enabled to make a portion of a judicial pension not payable as a punishment upon being found guilty of misconduct. Another possible alternative, under tort law, is to make a portion of the pension payable to a victim, if an offender is found liable of serious misconduct while in a judicial office.
Serious misconduct
2.9
The bill would provide that a retired judge would no longer be entitled to receive a pension if both houses of Parliament resolve that the retired judge had engaged in serious misconduct while serving as a judge. Evidence highlighted two key concerns on this issue: (a) 'serious misconduct' is not defined in the bill and (b) the low evidentiary threshold required for a finding of serious misconduct.
Definition of serious misconduct
2.10
The bill does not define 'serious misconduct'. The explanatory memorandum explains that the phrase is taken from the Governor-General Amendment (Cessation of Allowances in the Public Interest) Bill 2019 and the Fair Work Act 2009. According to the explanatory memorandum, the adoption of the phrase 'serious misconduct' is 'intended to provide the Parliament with maximum discretion to determine the scope, pervasiveness and impact of a judges behaviour when determining what serious misconduct is'.
2.11
Inquiry participants expressed concern that the meaning and application of 'serious misconduct' in the bill is not clearly defined. The UNSW Law Society stated that 'there are no precise parameters or indicators for what type of events' will constitute serious misconduct'.
2.12
Dr Arnold suggested the vague reference is 'likely to prove contentious as the basis for resolutions by both chambers of the national legislature. It provides a disquieting model for the unicameral legislatures'. Dr Arnold also explained:
The wording provides less certainty than reference in the Governor-General Amendment (Cessation of Allowances in the Public Interest) Bill 2019 (Cth) to –
inappropriate, improper, wrong or unlawful conduct [including] corruption, sexual misconduct, sexual harassment, theft, fraud and other criminal behaviour.
2.13
On a different issue, related to the inclusion of the phrase 'sexual misconduct', AGD posited that reference to 'serious misconduct' in the bill could facilitate inconsistent treatment of sitting and retired judges. This is because the use of the phrase 'serious misconduct departs from the existing test for removing judges from office under s 72(ii) of the Constitution' which is 'proved misbehaviour or incapacity'.
2.14
Inquiry participants disputed the purported benefits of giving maximum discretion to the parliament to decide what constitutes serious misconduct. There was concern that discretion could 'allow for abuses of power' and 'the personal views or motivations of members of parliament' to influence decision making.
2.15
The AGD submitted that in the absence of a definition of serious misconduct:
interpretation of the phrase would appear to remain within the sole remit of the Parliament which would have discretion to decide what evidence, if any, would be required to be presented and what standard or threshold ought to be met before passing a resolution that a former judge had engaged in 'serious misconduct' while in office.
2.16
Evidence supported the inclusion of a clear definition of serious misconduct in the bill to facilitate 'greater certainty in the law and avoid broad discretionary powers bestowed on the parliament'. Dr Arnold suggested that including specific examples would be beneficial. The UNSW Law Society stated that a 'non-exhaustive list of examples would be helpful'. Similarly, Mr Thompson posited that the inclusion of a 'checklist…of characteristics of serious misconduct, should this bill go forward, that could provide the parliament with a helping hand with what 'serious misconduct' is'.
2.17
With reference to the misconduct examples including theft, fraud, assault and intoxication provided in the Fair Work Regulations 2009, the Women Lawyers Association of Queensland (WLAQ), stated its support for sexual harassment being included as a specific example of serious misconduct. Similarly, VWL 'recommended the explicit inclusion of sexual harassment as a specific example of 'serious misconduct' so as to avoid any ambiguity'. VWL suggested that this could be defined with reference to the definition of sexual harassment adopted in the Sex Discrimination Act 1984.
2.18
In response to a question on notice, the UNSW Law Society proposed the following definition for serious misconduct:
conduct that is:
a. deliberate and harmful to
i. the administration of justice; or
ii. the ethical standards of the court/ The Australasian Institute of Judicial Administration Incorporated, 'Guide to Judicial Conduct'
b. liable to lead to serious loss of faith in the judiciary; or
c. unlawful under the Commonwealth Criminal Code 1995 (Cth).
Low evidentiary threshold
2.19
Inquiry participants questioned whether the evidentiary threshold required for findings of serious misconduct under the bill was sufficient. Dr Arnold submitted that the bill is 'unduly expansive because it does not require a conviction…in a court of law where claims are tested'. It has a low evidentiary threshold and does not require an independent investigation. Furthermore, Dr Arnold was concerned that the bill proposes a 'mechanism that simply on the basis of claims will retrospectively remove someone's pension on the basis of claims that have not been tested in court. It's simply an assertion'.
2.20
According to Mr Thompson, a 'critical deficiency' of the bill related to its enabling of the parliament to 'independently revoke a pension even where a finding of guilty has not been made in a court'. While acknowledging that it was unlikely, Mr Thompson was concerned that this could mean that future governments or parliaments 'maliciously use [the legislation] to unduly influence the judiciary and judicial decisions'.
2.21
The UNSW Law Society suggested the bill would 'benefit from a specified evidentiary threshold for proof of misconduct, as is required in similar pension schemes in the United Kingdom, Canada and the United States'.
Potential constitutional concerns
2.22
Evidence highlighted that the bill may raise constitutional issues with particular reference to possible inconsistencies between provisions in the bill and section 72 of the Constitution.
2.23
AGD explained that section 72(iii) of the Constitution provides that a judge's remuneration shall not be diminished during their continuance in office. While AGD emphasised it was unable to give legal advice, it noted that:
there is a question whether the cessation of judges' pensions in certain circumstances as proposed by the Bill would be consistent with s 72(iii). Further, there may also be a question whether the Bill is contrary to s 51(xxxi) of the Constitution which requires any acquisition of property by the Commonwealth to be on just terms.
2.24
AGD emphasised that this issue was raised in the context of the 'strong protections of judicial independence that are expressly in the provisions of the Constitution, and by implication from the strong separation of powers'.
2.25
On the issue of separation of powers, Dr Arnold described the bill as an 'inappropriate interference with the judiciary' and argued that if the bill was implemented, it might be contested under the Constitution on the basis that it interferes with the judiciary in the absence of a conviction based on testing of evidence.
Consideration of other mechanisms to address serious misconduct in the judiciary
Independent judicial commission
2.26
Inquiry participants advocated for the establishment of an independent judicial commission. It was argued that an independent body would assist to foster a 'culture of visibility and transparency' in dealing with misconduct in the judiciary. The establishment of an independent commission was viewed as a mechanism to enable 'grazing back the gloss and being able to have an independent third party that isn't the government or the judiciary in and of itself to have a look at and make recommendations'.
2.27
In VWL's view, such a commission should be established at the Commonwealth level on the basis that:
it's a federal issue and specifically in relation to section 72(ii) that applies nationally. Therefore, any issues of serious misconduct, whatever that is to mean, should be dealt with on a national basis and should be dealt with in a uniform manner.
2.28
Submitters and witnesses referred to both the New South Wales Judicial Commission and the Victorian Judicial Complaints Commission as models that could be instructive for developing a federal judicial commission.
2.29
On the matter of establishing an independent Commonwealth judicial commission, AGD advised:
that the department sought legal advice on that to examine the permissible scope of extending the existing judicial complaints processes, noting that there's a need to respect the independence of the judiciary.
Other reforms
2.30
VWL advocated for a suite of reforms to deter serious misconduct in the Australian judiciary including:
the need for victim-focused complaint and investigation processes, reporting that provides high-level visibility and accountability to executives and Boards, and a Code of Conduct for those appointed to courts and tribunals;
consideration of financial incentives as effective deterrents including the removal of caps on damages awards for sexual harassment;
any money saved (from forfeiting a pension) or collected from perpetrators by way of fines or undertakings, be made available to support victims in areas such as reporting, recovery, pursuing legal action, or compensation for the injury on victim’s careers and mental health; and
the adoption of government primary prevention strategies to facilitate broader cultural and social shifts needed to address gender inequality.
Committee view
2.31
The committee unreservedly condemns sexual harassment and sexual assault in all its forms. Everyone has the right to feel safe in the workplace.
2.32
The committee recognises the work being done by the Commonwealth government in response to the Australian Human Rights Commission's recommendations in the Respect@Work report. The release of A Roadmap for Respect: Preventing and Addressing Sexual Harassment in Australian Workplaces is an important step in the creation of a new culture of respectful behaviour in Australian workplaces. Initiatives and additional funding announced in the recent Budget demonstrate the government's commitment to ensuring the recommendations are fully implemented.
2.33
Evidence to the inquiry highlighted major concerns with the bill including its ability to effectively achieve its aims, the absence of a definition of 'serious misconduct', and potential constitutional issues. While the committee supports the intent of the bill to provide a mechanism to address sexual harassment in the judiciary, its view is that the bill is not an appropriate mechanism for doing so.
2.34
The committee recommends that the Senate does not pass the bill.
Senator the Hon Sarah Henderson
Chair