Judicial Conduct Commissioner (Miscellaneous) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 29 August 2024.)

The Hon. C. BONAROS (16:24): I rise to speak in support of the Judicial Conduct Commissioner (Miscellaneous) Amendment Bill 2024. I had cause to meet one of the complainants involved in shaping these reforms, Ms Bitmead, who was a federal prosecutor at the time and whose sexual harassment complaint prompted the unprecedented judicial inquiry that resulted in the ultimate dismissal of then magistrate Mr Milazzo.

I want to take some time to acknowledge how difficult a decision this was for Ms Bitmead and the personal and professional toll it took on her and others like her, as well as the courage that she and other complainants showed and how remarkable that was and the culture shift that has resulted, particularly through the introduction of this bill. I think it is worth noting, as Ms Bitmead has done publicly, that it takes a lot of courage to put yourself in that position and to be at the centre of these sorts of stories. It comes at great personal and professional expense and toll for an individual.

Ms Bitmead was one of three who lodged sexual harassment complaints against Mr Milazzo. She has spoken publicly of her requirement to give evidence and submit to cross-examination by a then QC as part of the judicial conduct panel investigation. I note that that was the first of its kind in this jurisdiction. At the conclusion of that matter and post the panel's report being tabled in this place, she spoke again about the relief of finally getting the result that came out of that investigation.

She talked about the long and staggered and sometimes quite opaque process, the emotional distress it caused her—and I am sure this applies equally to those other complainants as well—but also the scrutiny that it resulted in from her own profession in particular, both publicly and privately, and the gruelling, intense and often scary feelings that came along with that for her. I say that because it is the typical response that you hear from victims of these sorts of matters, who do find the courage, as Ms Bitmead and others did, to speak out in relation to these sorts of complaints.

There were some eight complaints against the magistrate in question at the time, and the panel of course found those complaints proved and recommended the removal of Mr Milazzo as a magistrate, and this bill is the end result of that process. Equally importantly, it is the end result of the meetings that the Attorney undertook to have with those complainants and to hear of their experiences, including Ms Bitmead, and the accounts of the experience that she was able to share with the Attorney and others with respect to what that process is actually like.

It is one thing to have a process in place and it is quite another to have to live through that. I think it is really important that we do take the time to hear from those who have in terms of where those systems are working and where they clearly are not for victims. In that respect, I thank the Attorney for taking on board the concerns raised by complainants in those personal discussions that he had, and similarly the Chief Justice, and I acknowledge the important role that the feedback has played in terms of reforms to the judiciary but also the legal profession as a whole and of course in shaping these reforms. As we all know, these issues are not easy for people to talk about, so I again just thank those people for having the courage to do that, and playing such a significant and pivotal role in where we are today.

As with all these issues though, I have no doubt that it will be a bit of a wait and see. That was the first panel instigated in this jurisdiction. These reforms are the result of that, and I think we will have to be vigilant in monitoring how they progress, and ensuring that they strike that right balance in terms of improving existing processes, providing greater independence, transparency and procedural fairness and clarity, particularly for complainants who are involved in those processes, and also, particularly in relation to destigmatising and also encouraging other complainants to come forward in the future without fear of stigma and persecution.

Of course, I think it would be remiss of me not to take this opportunity also to note an equally important body of work, namely the Equal Opportunity Commission reports of 2021 and 2024 into harassment, including sexual harassment in the legal profession, and the measures the Chief Justice has implemented as a result of that critical body of work, the commission has implemented as a result of that body of work, and that the Equal Opportunity Commission continues to play in terms of this area. In so doing, I take this opportunity to acknowledge, of course, the important work of the former acting commissioner Ms Steph Halliday, and the now commissioner Ms Jodeen Carney.

I am hoping that we have the balance right in terms of these reforms. Again, it is going to be a bit of a wait and see to see whether indeed that is the case, but I acknowledge the work that has gone into this, and certainly acknowledge the work of the Attorney in terms of trying to get this balance right, and doing all that we can to ensure that these processes are victim-led, that there are the appropriate levels of transparency, as I said, independence and procedural fairness accorded to those who do find the courage to speak up and pursue these claims as Ms Bitmead and other complainants did. With those words, I indicate my support for this legislation and look forward to its speedy passage through this place, and implementation.

The Hon. S.L. GAME (16:32): I rise briefly to support these amendments, which are intended to improve the fairness and efficiency of the judicial complaints process. Under these amendments, the definition of a complainant is extended to include someone affected by the alleged misconduct, which provides those affected with the right to be informed about the progress of the complaint.

The extension of rights for those affected by judicial misconduct is beneficial, and the provision of information on the process is useful for all of those affected by the alleged misconduct. The insertion of the new section 6A is also a useful measure as it requires the public to be informed by the Judicial Conduct Commissioner about how judicial misconduct panels are both called and conducted.

In the interest of fairness, the insertion of section 23A and 23B creates a statutory entitlement to legal representation for the complainant, the judicial officer and any witness appearing before the inquiry. Section 23C also ensures access to witness protection for persons appearing before the panel. The insertion of section 24A requires the panel to inform witnesses of their rights and obligations before questioning, which is an important measure for parties who are uncertain or unsure about the complexities of the legal process. The provision of this information will be significant, as section 24B makes it clear that the complainant and witness can be cross-examined.

Another significant measure of 24B is subsection (2), which protects witnesses and complainants from being personally cross-examined by the judicial officer who is the subject of a complaint. This upholds the fairness of the process, and provides some safeguards against complainants and witnesses from being unfairly interrogated and intimidated. None of these measures are controversial, and only offer further safeguards to the procedural fairness in the process of hearing judicial complaints and, as such, I offer my support.

The Hon. M. EL DANNAWI (16:34): I rise to speak in support of the Judicial Conduct Commissioner (Miscellaneous) Amendment Bill. The Judicial Conduct Commissioner was established to provide an independent mechanism for dealing with complaints about judicial officers. For the purposes of the act, a judicial officer includes magistrates and judges. The review of harassment in the legal profession in South Australia in 2021 found 'that harassment continues to be a prevalent feature in the legal profession and perpetrated against practitioners and support staff alike'.

The review said that the nature of the legal environment inevitably leads to harassment being normalised, minimised and often disregarded. Prior to the creation of the Judicial Conduct Commissioner, complaints against a judicial officer were taken to a senior judge. There was no external process to deal with them. This was inadequate, for obvious reasons.

Judicial officers are leaders in their professions and ought to be the models for behavioural standards. Under the act, complaints made to the commissioner can be dealt with in several ways. One such way is for the Attorney-General to recommend a judicial conduct panel inquire into the alleged conduct. It is not common for a complaint to reach a judicial conduct panel. For this reason, it is important to reflect on the experiences of those who have been through the process. Their feedback can help troubleshoot issues to make sure that panels run better in the future.

This bill provides amendments to strengthen the rights of witnesses and complainants. This bill amends the definition of a complainer. It states that even if a person does not make the formal complaint they may still be considered a complainant if the alleged misconduct was directed at them. This will allow them the right to be informed about the progression of their complaint.

The bill inserts sections 23A and 23B, which provide the process for the appointment of legal counsel. It also creates the statutory entitlement for legal representation for parties appearing before the inquiry. The bill adds section 23C, which grants people appearing before the panel the same access to witness protections that are available to witnesses in other legal proceedings through the Evidence Act. The bill also adds a section making it explicit that a witness must be informed of their rights and obligations as a witness by the judicial conduct panel.

Section 24B is a new section, which pays particular attention to the unique circumstances of witnesses and complainants. As I said at the outset, these complaints are being made against judges and magistrates, legal professionals who are leaders in their field. It is not out of the question that they might want to represent themselves in the proceedings.

This section protects witnesses and complainants from being personally cross-examined by the judicial officer who is the subject of the complaint. It does not prevent the judicial officer from acting for themselves, but if they are not legally represented the cross-examination must be done by submitting questions to the panel or in a manner directed by the panel.

Amendments made to section 14 give the commissioner the power to postpone consideration of a complaint only where it is appropriate. This will only be an option where the complaint is made during a hearing that is being conducted by the judicial officer in question. The bill also inserts a section which will require the commissioner to prepare and publish guidelines for the functioning of a judicial conduct panel.

The subjects of these complaints are not only in positions of power but they are also decision-makers in our society. It is a small profession, with a reputation for a culture of silence. We need to ensure that when people do break that culture and make a complaint, there is a sound and reliable process for dealing with that complaint. I commend the bill to the council.

The Hon. R.B. MARTIN (16:38): I am pleased to speak in support of the Judicial Conduct Commissioner (Miscellaneous) Amendment Bill 2024. The Office of the Judicial Conduct Commissioner was established by the Judicial Conduct Commissioner Act 2015 to provide a means of dealing with complaints about judicial officers in our state. The aim was to create an independent, fair and transparent process. It was in 2021 that the first judicial conduct panel was appointed under the act. Its purpose was to inquire and report into eight complaints that were made against a particular magistrate.

The reform that this bill proposes came about as a result of feedback provided to the Attorney-General by complainants who, having gained firsthand experience with the panel's processes, were in a position to identify areas for improvement. It was also apparent from the report of the judicial conduct panel, that reform was warranted. They put forward the view that it would be beneficial to amend the Judicial Conduct Commissioner Act to provide improved clarity around procedural matters for those who participate in judicial conduct panel inquiries as complainants and witnesses.

A draft bill was prepared and was subject to targeted consultation in September 2023. The amendments to the act proposed by this bill aim to ensure better consistency in how future judicial conduct panel inquiries are conducted, whilst still giving the judicial conduct panel flexibility to make determinations around procedures based on the requirements of an inquiry. The proposed amendments were quite capably explicated by the Attorney-General in his second reading contribution, so I seek to contribute only brief remarks of my own.

Clause 3 of the bill amends the definition of 'complainant' in section 4 of the act, so that where the misconduct that is the subject of an inquiry was directed at a particular person, that person will be considered a complainant under the act, even if they were not the person who made the formal complaint. This will mean that such persons will benefit from the existing provisions of the act that are only relevant to complainants under certain current provisions—for example, the right to be informed about the progression of the complaint.

Clause 4 of the bill inserts a new section into the act, section 6A, which requires the commissioner to create and publish guidelines relating to how meetings of judicial conduct panels are to be called, how business is to be conducted at judicial conduct panel meetings and how judicial conduct panels are to conduct inquiries and examinations of complaints under the act.

Clauses 7 and 8 of the bill insert new sections into part 4 of the act to strengthen certainty around procedures that apply when a judicial conduct panel is established. New sections 23A and 23B set out the process for the appointment of council to assist in an inquiry and create a statutory entitlement to legal representation for the judicial officer who is the subject of the complaint, as well as any complainant or witness who appears before the inquiry.

New section 24A will require a judicial conduct panel to take certain actions before questions are asked of a witness. This includes informing the witness of their rights and obligations, as well as informing them of any requirements under the act relating to publication, confidentiality and non-disclosure of information and evidence.

Subsection (2) of new section 24B quite reasonably protects witnesses and complainants from being cross-examined directly by the judicial officer who is the subject of the complaint. Instead, where the judicial officer does not have a legal representative, cross-examination must be undertaken either by submitting questions to the judicial conduct panel or as the judicial conduct panel otherwise directs.

The real test of any piece of legislation or any newly-created entity is in its operation. It is valuable to have input from those who have engaged personally with a judicial conduct panel, and I commend the past complainants who have provided the feedback that has assisted in shaping these reforms, and who have thus contributed to better experiences and outcomes for future participants in judicial conduct panels.

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (16:43): I thank all honourable members for their contributions on this debate and I look forward to this important bill progressing through the committee stage.

Bill read a second time.

Committee Stage

Bill taken through committee without amendment.

Third Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (16:44): I move:

That this bill be now read a third time.

Bill read a third time and passed.