Judicial Conduct Commissioner (Miscellaneous) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 24 July 2018.)

The Hon. K.J. MAHER (Leader of the Opposition) (17:47): I rise today to indicate Labor's support for this bill and indicate that I will be the lead speaker and have conduct of this bill. I also indicate that Labor has lodged amendments to this bill, and I will come back and briefly refer to those shortly. Following the passage of the Judicial Conduct Commissioner Act 2015, the Independent Commissioner Against Corruption was appointed as the first Judicial Conduct Commissioner. The role of the commissioner is to deal with complaints regarding the conduct of judicial officers such as magistrates and judges.

I understand this bill is the same or substantially similar to the one that was introduced by the Labor government in the previous parliament but lapsed before the election. I understand the commissioner has requested amendments in this bill. The Treasurer might be able to shed light on that and whether amendments might be forthcoming in terms of another bill, or if anything has been added. This bill clarifies that the commissioner can dismiss a complaint without conducting a preliminary investigation where the commissioner has previously considered the subject matter of the complaint or where the commissioner has determined that the complaint could not be substantiated or warrant taking any action under the act.

A new clause introduced by the bill requires the commissioner not to disclose the identity of a complainant to a judicial officer unless a complainant has consented to do so, or if the commissioner is of the opinion that disclosure is required so the judicial officer can respond to the complaint. This is particularly important in instances, for example, where a lawyer regularly appears before a specific judge. The bill also clarifies that the Judicial Conduct Commissioner is able to use the staff of the ICAC and not just staff from the OPI. I mentioned earlier that the Labor opposition has filed amendments to these bills. These amendments are heavily based on recommendations and consultation with the Law Society.

I will take a brief moment to reflect on the valuable work of the Law Society and thank them for their good work on this and other bills. I also want to briefly mention that in the other place the Attorney-General committed to advising whether the Labor opposition could have access to submissions made on this bill. I suspect that the answer is no but I am sure that the Treasurer, representing the Attorney, will take it on notice to see if that is the case. I will not quote the whole submission of the Law Society but just the relevant paragraphs that have helped inform our amendments. Paragraph 10 states:

The society suggests clause 15 could be amended so that should the commissioner propose to disclose the identity of a complainant to the judicial officer or jurisdictional head, before doing so the commissioner must invite the complainant to make submissions on why their identity should not be disclosed or otherwise offer the complainant the opportunity to discontinue the complaint if the circumstances allow should the commissioner decide it is necessary to disclose their identity in order to properly consider the complaint.

In discussions with parliamentary counsel that has been turned into an amendment that stands in my name. I know the Attorney-General in the other place dismissed the need for these amendments, arguing there might be instances where the complainant does not want to disclose their identity but the commissioner feels it necessary to deal with the complaint.

The Attorney-General in the other place, during the passage of the bill, argued that this bill sufficiently protects a complainant's identity. We are not convinced. It is one thing to seek consent to disclose the identity but it is completely another thing to ask a complainant to draft a submission. In doing so, they would entirely turn their mind to the ramifications of deciding whether or not their name would be disclosed. We are also interested in the application of and the effect of clause 6 and the amendments to section 10 in relation to staff. In the other place the Attorney-General said:

At the moment the commission is appointed as per the Governor's appointment. There is no reason why the commissioner for judicial conduct has to be the same person as the ICAC commissioner. It happens that the former government requested the Governor to appoint the same person for each of those roles but the act stands independently and they are able to operate independently. Should it occur in the future then there may need to be a question about whether that would operate from and whether the resources would need to be separated.

I think the Attorney-General has made an important point there. She said that the acts should be able to operate independently. It would appear to follow that changing the legislation to enable the ICAC commissioner who, in the future, may not be the Judicial Conduct Commissioner, may have unintended consequences in permanently linking the two positions and acts together so much as future legislative change may be required to separate the relevant resources.

So the Treasurer on that point, representing the Attorney-General, might like to expand on why linking those resources would not necessarily complicate matters if the appointment was to be made as if the appointment of the Judicial Conduct Commissioner was not the ICAC commissioner. With those few words, I can indicate our general support for this bill, save for the amendments that I have mentioned.

The Hon. R.I. LUCAS (Treasurer) (17:53): I thank the Leader of the Opposition for his contribution to the second reading debate and I look forward to the committee stage.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. K.J. MAHER: There was a question I raised in my second reading contribution a moment ago. Is the Treasurer able to confirm that the bill contains the measures, and only the measures, that the Judicial Conduct Commissioner requested, that is, that there is nothing that the Judicial Conduct Commissioner requested that has been left out of the bill?

The Hon. R.I. LUCAS: My advice is this is exactly the same as the bill formerly introduced by the Labor government, which was based on advice from the commissioner.

The Hon. K.J. MAHER: So there is nothing the commissioner has asked for that has been left out of this bill; is that the advice?

The Hon. R.I. LUCAS: My advice is there is nothing that has been left out.

Clause passed.

Clauses 2 to 14 passed.

Clause 15.

The Hon. K.J. MAHER: I move:

Amendment No 1 [Maher–1]—

Page 5, line 31 [clause 15(2), inserted subsection (5)(b)]—Before 'the Commissioner' insert:

subject to subsections (6) and (7),

Amendment No 2 [Maher–1]—

Page 6, after line 6 [clause 15(2)]—After inserted subsection (5) insert:

(6) Before disclosing the identity of a complainant in accordance with subsection (5)(b), the Commissioner must give the complainant written notification that the Commissioner intends to disclose the complainant's identity (and providing reasons for the determination) and must allow the complainant a reasonable opportunity to make submissions to the Commissioner in relation to the determination or to withdraw the complaint.

(7) If the complainant notifies the Commissioner that the complainant wishes to withdraw the complaint, the Commissioner must determine to take no further action in respect of the matter the subject of the complaint.

I will speak briefly on the amendments to clause 15. Amendment No. 1 [Maher-1] is consequential on the passing of the amendment that follows, amendment No. 2 [Maher-1]. This is the issue that I raised in the second reading, and that is where the commissioner is of the mind to reveal the identity of a complainant who has made a complaint about a judicial officer. It provides that the commissioner must give the complainant an opportunity to put forward, effectively, submissions as to why the complainant's identity ought not be revealed. It also allows the complainant the ability to withdraw the complaint if they wish.

In some jurisdictions, if there is a legal practitioner who regularly appears before particular judges, magistrates or members of tribunals, if the commissioner decided that their identity should be revealed, it might make it extraordinarily difficult for them to continue to practice in whatever their area of expertise is. We believe it is reasonable to allow the complainant the opportunity to put forward submissions about not having their identity revealed and, if the commissioner still believes their identity should be revealed, if the complainant thinks it is of such significant detriment to them, it allows the complainant to withdraw the complaint. We commend the amendment to the committee.

The Hon. R.I. LUCAS: I will address both amendments on behalf of the government together. The government will not be opposing the opposition's amendments. The amendments, as we understand them, are designed to allow a complainant to have a formalised opportunity to make submissions to the Judicial Conduct Commissioner if the commissioner makes a decision to disclose their identity to the judicial officer who is the subject of the complaint or to withdraw their complaint in response to the decision.

The government notes that the commissioner is only able to disclose the complainant's identity if he considers it necessary for the judicial officer to be able to properly answer the complaint. However, we understand that complainants may be extremely concerned about their future careers if they have to regularly appear before the same judicial officer, so it is important that the commissioner has all available information in making the decision to disclose the complainant's identity.

The second part of amendment No. 2 compels the commissioner to take no further action in respect of the complaint if the complainant decides to withdraw their complaint following a decision of the commissioner to disclose their identity. Whilst we hope the complainant would never feel the need to withdraw their complaint through fear of retaliation if their identity became known, we accept that in a small jurisdiction such as ours it is not always possible for a complainant to feel able to proceed.

One of the provisions in this bill makes it clear that victimisation of a complainant by a judicial officer is itself conduct that can be the subject of a complaint. We hope that makes it clear that any pressure on a complainant to withdraw their complaint is completely unacceptable. In supporting these amendments the government has consulted with the commissioner to ascertain his views, and we note that he has no objections to the amendments.

Amendments carried; clause as amended passed.

Remaining clause (16) and title passed.

Bill reported with amendment.

Third Reading

The Hon. R.I. LUCAS (Treasurer) (18:02): I move:

That this bill be now read a third time.

Bill read a third time and passed.