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House of Assembly - Fifty-Second Parliament, Second Session (52-2)
2012-03-29 Daily Xml
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JUDICIAL COMMISSION

The Hon. R.B. SUCH (Fisher) (11:20): I move:

That this house calls on the state government to establish a judicial commission.

I am sure members noticed in the media recently a reference to allegations made about a magistrate in New South Wales, Pat O'Shane. The allegations essentially referred to a claim that, in the court, the magistrate inferred that the paramedic who was involved—

The Hon. M.J. Atkinson: Implied.

The Hon. R.B. SUCH: I have got down here 'inferred', but I will take the deputy editor's correction—implied the paramedic was racist because he called the accused, who was a black man from Africa, 'a filthy pig', because it was claimed that the accused had spat on the floor of the ambulance just prior to the comments made by the paramedic. The magistrate apparently refused to allow another paramedic, who was involved in the altercation between the man and the paramedic, to give evidence.

My concern is not with what magistrate Pat O'Shane did or did not do. What did attract my interest was the fact that in New South Wales they have a Judicial Commission. As a result of the accusations against the magistrate, the New South Wales Premier, Barry O'Farrell, has asked the Attorney-General to lodge a complaint with the Judicial Commission.

In essence, it is part of the judicial arm of government. This is the model in New South Wales that I am seeking to have replicated to a large extent here. It has existed since 1986. It was established by the Judicial Officers Act. Its principal functions are to assist the courts to achieve consistency in sentencing, organise and supervise an appropriate scheme of continuing education and training of judicial officers, and examine complaints against judicial officers.

I will say at the outset that I think South Australia has been well served over time by our judges and magistrates. There have been a couple who have not lived up to expectations, but they are very few in number. I think there is a parallel with members of parliament. There have only been a very few members of parliament who have not behaved in a way that is expected of them by the community in terms of moral or criminal behaviour and so on. I think we have been well served by our judges and magistrates, so I am not in any way trying to create a witch-hunt against judges or magistrates.

As an aside, I think it is unfortunate that none of our judges have ever been appointed to the High Court. I think the current Chief Justice would have been eminently suitable to sit on the High Court.

The Hon. M.J. Atkinson: There are two vacancies coming up.

The Hon. R.B. SUCH: Yes, I realise vacancies are coming up, but I understand the age restriction will probably work against the current Chief Justice, which is unfortunate. I think that is another issue that needs to be revisited in this day and age. I believe that judges have to retire at the age of 70, and I think that could be altered, but that is a debate for another day.

The Judicial Commission in New South Wales, as I say, has three prime functions. It also gives advice to the Attorney-General, and it runs educational programs which provide judicial officers information on law, justice and related areas, and assists in the development of appropriate judicial skills and values.

I have previously raised that matter into particular magistrates but not exclusively magistrates. The first issue, of course, is selecting the right people to be a judge or a magistrate. That is a very important thing, but then there needs to be ongoing education and training, because as we know the world changes, technology changes, and so on. I think that in talking with some of the judiciary, some of the issues that are very difficult at the moment are in relation to offences of a sexual nature, and I think that Her Honour Justice Robyn Layton has been trying to assist the judiciary with some difficulties in that area.

The world changes, technology changes, and it is important that judges and magistrates are provided with an opportunity to keep up-to-date and, in fact, ahead of some of these changes. In South Australia currently the only body which examines the conduct of legal officers is the Legal Practitioners Conduct Board. The Legal Practitioners Act of 1981 gives the board power to investigate lawyers in relation to suspected or alleged unprofessional or unsatisfactory conduct to decide whether they have substantially or repeatedly fallen below professional standards. The board is also required to investigate allegations of overcharging in relation to bills rendered by lawyers.

However, the board does not handle complaints against judges. The federal Attorney-General, the Hon. Nicola Roxon, is reported as saying that Australia's handling of complaints—and she was talking specifically about federal judges and magistrates—was, and I quote, 'ad hoc and somewhat opaque'. It is very difficult to raise currently in South Australia a matter of concern about a judge or a magistrate because of the longstanding tradition of—apart from the appeals process—judges, for example, and others not interfering—whether it be the Chief Justice or the Chief Magistrate—with what they would see as the delivery of justice or the justice system.

Currently in South Australia we do not have a body equivalent to the New South Wales judicial review commission, and I believe that we should. Over time in South Australia comments have been made by judges and magistrates, some of which, I think, have been somewhat petty. In 1993 Judge Derek Bollen received quite a bit of criticism for a comment that it was acceptable for men to use rough handling on their wives to persuade them to have sexual intercourse. I believe what he was arguing was what people do in their private lovemaking. Some people might favour vigorous activity more so than others. I think that he was lambasted unfairly for what he was trying to say; maybe he did not say it quite as clearly as he meant.

In 2003 magistrate Frederick made a comment which got him criticism. He said to a woman, Tashara Lee-Anne Were, appearing in his court:

You're a druggie and you'll die in the gutter. That's your choice. Stand up in the dock and behave like an adult. I don't believe all that social worker crap. You can go to work. Seven million of us do it whilst 14 million like you sit at home watching Days of Our Lives, smoking your crack pipe and using needles, and I'm sick of you sucking us dry. It's your choice to be a junkie and die in the gutter.

Those are pretty harsh words and there have been other magistrates who have said pretty harsh words, but I do not think that sort of issue warrants a review by any judicial commission.

I think it would be good if judges made comment about social issues. I know they are reluctant to get into the area of policy debate, but judges and magistrates see people coming before them all the time. They see children who have been neglected. They see how the system does not work, and I think it is a duty of judges and magistrates to make comment, without getting into the partisan debate. I think they have an obligation, like many judges have done in the UK. If they feel something is contrary to natural justice, is unfair or needs change, I do not see it as compromising their position at all to advocate, using appropriate language, to indicate that something is not right in the community. They see it day after day.

I think it was the judge from the Youth Court who appeared before our select committee into juvenile justice who made the comment about the people appearing before him. Many of them were not completing schooling and were truanting and so on. I see it as part of the obligation of a judge to speak out, because how is a society going to change and improve if some of these matters are not addressed?

I do not think the matter of Eugene McGee would necessarily come before a judicial review commission. That is an ongoing thing and there is a lot of concern in the community about it. I know the member for Croydon and the Attorney have both had a lot to say about it, but I do not think that is necessarily the sort of issue that would come before a judicial commission.

In the upper house the Hon. Ann Bressington has put forward a criminal cases review commission, a bill of 2010. I think only this week it went to the Legislative Review Committee. That is a different thing again and is looking at specific aspects of criminal cases. I think a judicial review commission is warranted because, in effect, we have a stumbling block. I have interacted with the Chief Magistrate and the Chief Justice on this issue and their hands are largely tied. As I said before, I am not here to indulge in what happened to me, but it is only because you get involved in these things that you become aware of some of the unsatisfactory aspects of our court process.

I think a matter of bias is a very difficult issue to assess. That is something that could be looked at. Members might say it is up to the appeal courts to look at these things. Theoretically and in a perfect legal world: yes, that would happen. But we do not have a perfect legal world and a perfect court system, so you get issues that slip through.

We went to the Full Court with a QC. Two QCs had a look at my situation (Kevin Borick and Rob Lawson) and both said I did not get a fair trial; and three police prosecutors (retired) have said the same. But you have a stumbling block. You cannot get some of these things considered because, as I say, the Full Court said that a magistrate had looked at it. Yes, magistrate Joanne Tracey looked at it, but she got it wrong, so you are stuck. People say that it is up to your lawyer to have made the appeal, and there is some truth in that. What the QCs tell me is that, if you appeal, you appeal on every possible ground, not just hang your hat on one or two items.

My experience has shown that there is a stumbling block: an inability for even someone like the Chief Magistrate or the Chief Justice to look at cases, so I believe we do need a judicial review commission. Judges and magistrates take an oath in which they swear that they:

...will well and truly serve our Sovereign the Queen, Her heirs and successors according to law in the office of...and will do right to all manner of people after the laws and usages of this state, without fear, favour, affection or ill will.

They should be held to account if they do not uphold that oath, and in my case I believe the magistrate did not, but you cannot do anything about it because we do not have a mechanism to look at the behaviour of a magistrate, under the current arrangements, nor indeed of a judge. In the Supreme Court, I do not have any qualms about what His Honour Justice Timothy Anderson did. I would have liked a different judgement but he was correct.

Debate adjourned on motion of Mrs Geraghty.

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