Bills

Judicial Conduct Commissioner Bill

Final Stages

Consideration in committee of the Legislative Council's amendments.

(Continued from 9 September 2015.)

Amendments Nos 1 to 10:

The Hon. J.R. RAU: I move:

That the Legislative Council's amendments Nos 1 to 10 be agreed to.

I am rising to address the Judicial Conduct Commissioner Amendment Bill which has returned from the Legislative Council. It might be of relevance for members to know—and I think it should be noted here—this is my understanding of the procedure as it occurred in the Legislative Council: I believe when the matter was before the Legislative Council, Mr McLachlan said, on the record, that they would accept the bill without amendment, and then a short time later Mr Wade moved an amendment—I am not quite sure on whose behalf—and that is amendment No. 11. I will deal with that in a moment, but I just indicate that amendments Nos 1 through to 10 are acceptable—

Ms Chapman: They're yours.

The Hon. J.R. RAU: Yes, and they are very good amendments too, if I might say so. I do want to make a point, though, about amendment No. 11, which is the one which was apparently unexpectedly moved by Mr Wade in the other place. Amendment No. 11 is, in the context of this bill, an anomaly. One could even say it is parasitic, in that it bears no relationship to the host but is a completely different species which has attached itself to the host.

I would draw the attention of members to our standing orders, and in particular standing order 250, which talks about amendments to bills. In particular, it mentions that it is convenient, conventional and indeed proper—and conversely, not convenient or proper to attach to a bill the subject of which is, say, carrots, an amendment about oranges.

This bill is about the judicial conduct commissioner. The amendment that has been attached in some sort of random fashion to this—as I said, it is sort of like a parasitic addition to it—is an amendment which has absolutely nothing to do with the bill. It is an amendment which is actually attempting to meddle with the composition of the Statutory Officers Committee.

The amendment, which appears to have some particular focus on me, at least presently, has the effect of saying that the attorney of the day cannot be a member of the Statutory Officers Committee—not that that has anything to do with judicial conduct; not even remotely. I am wondering, actually, whether or not it is in order for the Legislative Council to forward to the House of Assembly a bill containing an amendment which could not be made in the House of Assembly were that amendment to have been made here, because it would have been out of order under standing order 250. So, it might be that there is some question as to whether or not this has validity. It certainly, as I said, has nothing to do with the substance of the bill.

Just for the record, I have made some inquiries about the composition of the Statutory Officers Committee. Before my time, the current Speaker, who occupied my present role at that time, was a member of that committee. I believe that the Hon. Mr Lawson, before him, who also was attorney-general, occupied a position on that committee. I am 99 per cent certain that the Hon. Trevor Griffin, before him, was a member of that committee, and so on. I have not gone back to the 1800s, but I am fairly clear that there has been a lengthy established tradition of the attorney of the day being a member of that committee.

What has actually changed between the time of the Hon. Trevor Griffin and the present day in terms of the propriety of the attorney of the day being a member of the committee I do not know. I am not aware of anything, other than perhaps that the Attorney is no longer Trevor Griffin and it is me. It does seem to be a fairly particular amendment with a very particular object in mind.

I am completely happy with the first 10 amendments. I can indicate that if amendment 11 is, despite its completely random and unrelated nature, in any way in order, I am not going to hold this legislation up on account of that, because that would put me in a position not totally dissimilar to the mover of the amendment. However, I would ask if it is a legitimate question as to whether it is orderly for the Legislative Council to move an amendment to a bill about carrots a proposition about oranges.

The CHAIR: Or parsnips.

The Hon. J.R. RAU: Or parsnips for that matter. I would invite you, Madam Chair, if you want, to check out the Welsh word for carrot—anyway, that is another point. I just would like some guidance as to whether, if such a thing were moved in this house, it would be orderly, and if it would not be, is it appropriate or orderly or proper for an amendment which could not be made in this place to this bill be made elsewhere and whether it be proper for what is, by our standing orders, an improper amendment to be in effect approved by this house, given that our standing orders make, in my opinion, the position reasonably clear as to what is or is not appropriate.

That is not to say that if the Hon. Mr Wade wants to have another go at this he could not move a private member's bill, or if the Parliamentary Committees Act were open he could possibly do that. I am not arguing about that. He would be perfectly entitled to do that. But I make the point that the relationship between the Statutory Officers Committee and the Judicial Conduct Commissioner Bill is no greater than the relationship between the Statutory Officers Committee and the pig marketing act.

Motion carried.

Amendment No. 11:

Ms CHAPMAN: Madam Chair, if in fact the Attorney has asked you to give some learned consideration as to whether amendment 11 from another place is valid before we progress it, then I would like the opportunity to present some arguments to you. I am happy to do that today. I appreciate there are five minutes left before 4 o'clock when the house has determined that it will commence Auditor-General's matters. I am happy to start on that. If that is what I understand the Attorney is asking you to do, to go away and give some consideration to the validity of this amendment—

The CHAIR: As you know, we do have to stop at 4 o'clock, so if you want to speak until 4 o'clock that's fine.

Ms CHAPMAN: Is that your understanding, Madam Chair, that you have been asked to give some determination—

The CHAIR: It is my understanding, and I am going to get myself some advice.

Ms CHAPMAN: Excellent. Let me put the position in short. First, the Attorney-General presents that this may be struck down as being invalid pursuant to standing order 250. I invite you to read that standing order, which I suggest makes it perfectly permissible. Secondly, it is asserted that this is so different that it is something like some appendage that is parasitic. Given all the bills I have read of the Attorney's, in which there have been consequential orders to multiple other acts, I would describe those, in comparison, as blood-sucking ticks.

Nevertheless, the Attorney insists that it is invalid. If the validity of that, on the basis of consequential amendments to other legislation, including the composition of the committee that is being asked to determine the recommendation for the appointment of the independent judicial commissioner, I would be surprised—in fact, I would be utterly astounded—if that escaped the attention of the Clerk in the other place, someone of some 40 years-plus—

Mr Gardner: 50 years.

Ms CHAPMAN: —50 years-plus experience in that place. Nevertheless, you can give it due consideration. The third argument suggests that, on the basis that it is inconsistent, there is no relevance as to the composition of the Statutory Officers Committee and the exclusion by this amendment of the minister of the Crown being eligible to sit on it.

Let me say this. This committee now determines office-bearing positions that did not exist at the time of the predecessors (that is, the previous attorneys)—myriad historical appointments that were outlined by the Attorney. Therefore, we are in a new paradigm and we do have a new role. This committee does have a very significant role in the appointment of personnel, and it has already been determined that the minister (namely, the Attorney, in this case) should not be a member of that committee. He should not be a member of a committee advising himself to appoint persons. Finally, can I say that—

The Hon. J.R. Rau interjecting:

Ms CHAPMAN: You can carry on about appointing by the Governor and everything else. The reality is that judges are appointed by the cabinet's recommendation, by the Governor, submitted by the Attorney-General. The other statutory officers follow the same procedure and they are subject to a panel for recommendation to the Attorney. That committee, comprised of members of the parliament, are in that process, and they are in it for good reason. For exactly the same reasons, a future judicial conduct commissioner should be in exactly the same position. The absurdity of the Attorney suggesting that somehow or other in this instance he should be on this committee which will then give advice to himself, is absolutely laughable.

I would be asking you, first, Madam Chair, to accept this amendment, which has passed the test of the Clerk of the Legislative Council and which has been monitored by parliamentary counsel all the way through without challenge. The government has a choice. If they want a judicial conduct commissioner (which, in principle, for obvious reasons that we have outlined, we support), fine, but do not come in here and start bleating about the process that should be applicable to an appointment and then turn around and say, 'Well, we want the bill to go through, anyway, after putting you to all this work.'

We support the amendments, including the first 10, which of course were drafted by the Attorney. We are happy to accept those, dealing with pre-trial and civil matters. We have accepted that. If he wants to get on and have the process initiated so that we can have a judicial conduct commissioner, he should swallow his pride, get over the fact that he has had a really crappy week and support the amendments and accept the amendments.

Progress reported; committee to sit again.

Sitting extended beyond 17:00 on motion of Hon. J.R. Rau.