Labor believes that much more needs to be done to address the scourge of sexual assault and sexual violence in our nation. Labor supports the intent of the Judges' Pensions Amendment (Pension Not Payable for Misconduct) Bill 2020, which is to address what appears to be a loophole in existing legislation governing the pensions of retired federal judges.
The entire nation was shocked by the findings of the independent investigation into the conduct of former High Court Judge Justice Dyson Heydon, initiated by the High Court itself, and which found that he had sexually harassed six female associates during his ten years on the bench.
While Labor would usually expect the Government to act on a legislative matter of this sensitivity, the simple fact is this Government hasn't bothered.
Labor Senators of this committee are well aware of the critical importance of the constitutional separation of powers on which our Westminster system of government is built, and in particular, of the need to ensure the independence of the federal judiciary. However, we do not believe this bill offends those principles.
Our law already provides that a judge who is removed from office due to proven misbehaviour will generally forfeit their judicial pension. However, there is no provision under existing law to enable the very substantial pension to which retired judges are entitled to be removed from a judge who engaged in serious misconduct while on the bench, but who retired before that misconduct was discovered.
We note that since federation, section 72 of the Constitution has permitted both Houses of the Australian Parliament to remove a sitting federal judge for 'proven misbehaviour or incapacity'. If removal of a sitting judge from the federal bench under section 72 is not a threat to judicial independence, then the removal of a retired judge's entitlement to a pension for 'serious misconduct' while on the bench, and only prospectively from the time of the parliament’s determination of that matter, does not pose a threat to judicial independence either.
Indeed, under the Judges' Pensions Act 1968, the right to a judicial pension is terminated as a matter of course following removal of a judge by the parliament pursuant to section 72. So this bill effectively deals with the anomaly created if a judge has not been removed under section 72, but it is discovered later they engaged in serious misconduct and retired before action was taken against them.
It should also be noted that our Constitution explicitly protects the remuneration of federal judges during their continuance in office. It does not protect their income retirement arrangements.
However, Labor senators note the concerns that have been raised in submissions to this committee regarding the desirability for greater clarity in key provisions in this bill. These are matters that could be addressed by amendments to the bill to clarify what forms of misconduct could constitute grounds for the termination of a judicial pension by the parliament, and the standard of proof required to demonstrate such conduct had occurred.
In addition, Labor senators agree with submitters who suggested that this bill may be too narrowly cast, in that it addresses just one particular consequence that could flow from judicial misconduct. Labor senators believe that broader reforms should be considered to ensure the accountability of the federal judiciary, and potentially culture change. In particular, Labor senators note the findings of the Sex Discrimination Commissioner in her Respect@Work Report, and her emphasis on the need for reforms to prevent, rather than merely respond to, sexual harassment and assault in workplaces. In this context, Labor senators agree that consideration should be given to whether a federal judicial commission should be established.
Finally, Labor senators do not agree with the sentiments that have been placed in the committee view at paragraph 2.32 which seeks to applaud the government for recent budget initiatives.
Labor senators repeat the concerns that they made in the committee's report on the Regulatory Powers (Standardisation Reform) Bill 2020:
Senate legislation committees play a critical role in our parliamentary system. They should be focussed on rigorously reviewing the bills that come before them in order to ensure they are fit for purpose, and will serve the Australian people. Committees should carefully consider the facts, the policy issues, and the often detailed submissions and evidence of those who provide input to committee inquiries.
Senate committees should carry out their work in the service of the Australian people, and their reports should not contain blatantly partisan statements of government self-congratulation as this report seeks to do. The government senators of this committee should consider this when drafting their reports in the future.
Labor senators are disappointed that they have had to make this point in yet another report of this committee.
Recommendation
Labor senators recommend that Senator Patrick review the concerns that were raised in the inquiry and seek to amend the bill accordingly.
Senator the Hon Kim Carr
Deputy Chair