18 Jun 2015
Judicial Conduct Commissioner Bill
The Hon. A.L. McLACHLAN ( 16:46 :20 ): I rise to speak to the Judicial Conduct Commissioner Bill 2015 and set out the Liberal Party position. The Liberal Party will be supporting the bill and not seeking amendments. It is appropriate on the 800th anniversary of Magna Carta, which has just passed, to reflect on the role of the judiciary and its constraining power on the executive. This bill provides for the appointment of a judicial conduct commissioner. The judiciary is one of the three arms of government in addition to the legislature and the executive.
There has always been a need for the judiciary to be independent but also accountable to properly fulfil its role. The parliament executive acknowledged the importance of the principle of judicial independence and both have always been sensitive to making any intrusion into it. Judges have security of tenure, and this allows the judiciary to function and exercise its authority impartially without fear or favour. At the same time, there must be judicial accountability. Judges must be answerable for their actions and decisions to the community they serve.
Traditionally, judicial accountability has been achieved in a number of ways. Judges work in a public forum. Their trials are held openly in most instances to both the media and the public. If judges act poorly, or their conduct is unacceptable, it will be observed by all, including the advocates at the bar table. However, the public does need an understanding of the system, as do the media, and media reporting is not always clear and consistent. The public also has to be interested. The judiciary are also accountable, as they must give reasons and they are subject to an appeal process. In this way, judges are held to account by superior courts on issues such as bias, procedural fairness and acting in excess of their powers.
However, these reviews are restricted to legal errors and not necessarily professional qualities of the judge. Bullying and inappropriate behaviour and late judgements are not always picked up through the appeal process. In the past, the manner of dealing with complaints has been vulnerable to criticism because it has been done opaquely but by the senior members of the judiciary and those presiding over the particular courts. This bill endeavours to strike an appropriate balance between judicial accountability and judicial independence. The opposition is supporting it because it believes that, when enacted, it should achieve this objective.
The community should have a mechanism whereby they can raise concerns about the professional behaviour of a member of the judiciary. The South Australian position at the moment, without this amending bill, is that there is currently no system that deals with complaints other than by legal appeal against judicial officers. As I have indicated, the only mode of complaint is with the head of jurisdiction, for example, the Chief Justice of the Supreme Court or the Chief Judge of the District Court.
The opposition also notes that other jurisdictions have moved away from the self-regulatory arrangement currently in place in South Australia. The Federal Court has a system of dealing with complaints against judges by the establishment of an ad hoc judicial commission to deal with each case. The Australian Capital Territory has a similar system to the Federal Court, established under their Judicial Commission Act 1994. Their commissioner is appointed by the Attorney-General and not the parliament. In New South Wales, they have the Judicial Commission, established under the Judicial Officers Act 1986, which consists of the heads of the New South Wales jurisdictions.
Victoria has the Judicial Commission of Victoria Bill, similar to the New South Wales model, but they have not yet enacted it into law. In Western Australia, the Western Australian Law Reform Commission examined a policy in 2012, and they have recommended the adoption of the New South Wales model; however, they have not sought to table a bill. As the chamber can see, the tide is moving in Australia, and South Australia seeks a degree of consistency with its sister states and territory.
The bill has very special rules about how we caution, discipline and dismiss judicial officers, if appropriate, by the parliament. This bill establishes a transparent, formal and partially independent mechanism for dealing with both internal and external complaints made against a judicial officer. While the functions of the judiciary as a decision-making institution should not be subjected to the will of the executive, no individual members of the judiciary should be immune from the examination of performance or conduct in the performance of their duties or in their extrajudicial behaviour.
The commissioner will be appointed for a term of seven years, which can be renewed up to a maximum of 10 years. It is likely to be a senior lawyer or a retired judge. The appointment of the commissioner must be approved by the parliamentary Statutory Officers Committee and can only be removed by both houses of the parliament. The principal function of the commissioner will be to deal with complaints made against judicial officers in accordance with the scheme laid down by the act. In essence, the commissioner will take the role of a watchdog and investigate complaints.
Pursuant to the bill, if a complaint is made to the commissioner he or she will conduct a preliminary examination of the complaint. If the complaint is one that the ICAC Act applies to, it would then be referred to the Office for Public Integrity and all further action will would then be suspended until the process is complete. The commissioner is also obliged to notify any relevant head of a particular jurisdiction of any complaint received.
If the complaint is determined by the commissioner to be frivolous, vexatious, trivial, not made in good faith, or not within the commissioner’s jurisdiction, or is in an attempt to relitigate the merits of a matter that has already been heard, then the commissioner may take no further action in relation to that complaint. Therefore, this new regime cannot be used by querulous litigants as a way to relitigate their matters. If the complaint passes these initial threshold tests, it may be classified as more serious or less serious. If less serious, the commissioner may refer it for action to the Chief Judge or Chief Justice who then, under the bill, will be given powers to resolve it. The commissioner will be required to report annually to the parliament.
In conclusion, the opposition has noticed that the government has a number of spending priorities which are outstanding in relation to the law and order policy community debate, particularly, for example, the need to invest in our court system. I understand the Treasurer may have made a few comments in that regard today.
Given the parlous state of the economy, we are now creating another commissioner. Having noted the context of the creation of this new commissioner, the Liberal Party still believes that this bill is worth enacting because it further supports the role of the judiciary and the respect in which it is held by the community. There is no better time to do so in the year of the 800th anniversary of the Magna Carta, which has a consistent theme of judicial review of acts of the executive. With those words, I support the bill and on behalf of the Liberal opposition I commend it to the chamber.
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