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House of Assembly - Fifty-Third Parliament, Second Session (53-2)
2015-05-13 Daily Xml
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Bills

Judicial Conduct Commissioner Bill

Second Reading

Adjourned debate on second reading.

(Continued from 18 March 2015.)

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (12:01): I rise to speak on behalf of the opposition to indicate that we will be supporting the Judicial Conduct Commissioner Bill 2015. This bill was introduced by the Attorney on 18 March this year. It appears to have arisen as a result of one of the initiatives that he considered a priority after his Transforming Criminal Justice inquiries, of which there are myriad. In fact, there are so many: we have Transforming Health, we have Transforming Criminal Justice—wherever there is a problem we have a 'transforming' initiative or review underway.

Unfortunately, my desk in Parliament House is now chock-a-block full of review folders. There are so many of them, it just about makes your head spin. We have royal commissions and inquiries into tax, nuclear power, time zones—you name it. Well, this is another one. To my surprise, one of the highest priorities of the government appeared to be jumping in with a bill in March last year to tell us that we needed to have a commissioner—amongst the dozens of other commissioners we have in South Australia—in this case, to keep judges in order. On our understanding, it arises as a result of these inquiries, and it seemed to come to the attention of the Attorney that we are one of the few jurisdictions that does not have an independent person to keep judges in order in this type of format and, accordingly, we have this bill.

At first blush, my response was: why would we be paying $1 million a year to have another commissioner, which is about the going price for a commissioner these days. We have a KI commissioner—I think that was the last one appointed—and we have a legal practitioners' commissioner. Instead of moving to either a self-regulatory or a panel-type approach, it has been the initiative of the government to bring in another public servant and some ancillary staff and pay them about $1 million a year to undertake the duty of scrutiny and supervision, as may be required.

The KI commissioner has to keep an eye on all the departments and make sure they are doing what they are supposed to be doing. That begs the question, of course, as to why we even have ministers these days. In any event, we have one of those; we have a commissioner for just about everything else. It did concern me, at first blush, that the priority of the Attorney in relation to criminal justice should be to appoint another bureaucrat when, quite frankly, he is busily slashing money from the following areas: to enable people to have access to our criminal justice system, particularly in regard to timely hearing of their trials; to be able to give priority to bringing our courts up to some sort of contemporary standard (let alone building new ones); and to allocate funds to ensure we have sufficient support and advocacy for those who are unable to represent themselves.

There are myriad other areas where the government has been stint in relation to its support, or where it has promised something and then cancelled it. For example, Port Adelaide court is to be kept but the poor old Holden Hill people are to lose their court, etc. Coming up with a million dollar a year proposal to have another commissioner is, at first blush, I think, hardly a priority for this state. However, we are informed—and I thank those from the government who provided a briefing on this matter—that in other jurisdictions (and there was some reference to this in the second reading contribution of the Attorney) 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. So they have a process, not a permanent person sitting at home twiddling their thumbs if they do not have anything to do. They bring someone in on an ad hoc basis.

We have that system for lots of situations in our courts system in South Australia. From time to time we need extra judges in the Youth Court. We commission people to come in from time to time when we need extra people in the Supreme Court. We usually commission retired judges to come in to do that. We have a capacity to be able to provide for these things in the short-term, as required; however, in any event, the government has decided to go down the path of a permanent position.

The ACT has a scheme similar to the Federal Court, established under their Judicial Commission Act 1994, and the commissioner is appointed by the Attorney-General, not the parliament. In New South Wales they have a judicial commission established under the Judicial Officers Act 1986, which consists of the heads of the New South Wales jurisdictions ex officio. In Victoria there was the Judicial Commission of Victoria Bill 2010—which was similar to the New South Wales model—which, to the best of our knowledge, has not yet been enacted. The Western Australian Law Reform Commission examined the policy in 2012 and the New South Wales model was broadly recommended, and we are yet to see the implementation of that.

It seems as though other jurisdictions have moved on from what is effectively a self-regulatory arrangement. What happens in South Australia at the moment is that if a judge misbehaves or enters into some form of misconduct or is negligent in the duties that they are to undertake or in some way acts inappropriately for the standing of his or her office, essentially the process is that a general member of the public can write to their local MP or to the Attorney-General. The Attorney-General can then deal with the judge to the extent of, if necessary—and I would suggest that this would be on rare occasions—contacting the Chief Justice of the Supreme Court or the Chief Judge of the District Court saying, 'You understand that one of your judges has come to my attention; have you had any discussions with this person?' to internally, I suppose, manage the issue, if appropriate. If nothing is done or if what is done is inadequate, the ultimate sanction for a judge's misconduct is to be brought before both houses of parliament and dismissed, if the parliament sees fit.

We have very special rules about how we caution, discipline or ultimately dismiss, if appropriate, via the parliament. This is very different from other persons who serve the public, either in the Public Service or here in the parliament. If we do not behave ourselves, we of course face our electors at the next election. We can face the sanction of our own house or the parliament here and be excluded, which can in certain circumstances create a by-election, etc. So we have different ways of dealing with people who serve the public. Judges have a very special independence from individual scrutiny by, say, the Attorney-General, or indeed by the Chief Judge or Chief Justice of a judge in their courts, because the ultimate sanction is kept here for the parliament. Why? It is because we have a very strong principle of separation of powers, so we cannot have a situation where the executive has a direct role in the removal of a judge.

I think that is a good thing. In a way, this deals with the alleged dilemma of how we should deal with judges a step back from that, for someone who has not written their judgements on time, who is, perhaps, alleged to have improperly treated counsel before them or made ill-advised or inappropriate comments to witnesses or parties before them in a case. General alleged misconduct on the part of a judge is not a matter which, on the face of it, we would suggest the Attorney-General bring to the attention of the parliament, but how do we otherwise deal with it?

At the moment, the Attorney-General and the Chief Judge and Chief Justice may have a discussion with the judge in question to provide some support that may be necessary to assist that judge if there was found or acknowledged to have been some inappropriate conduct; so, arguably, caesar reviewing caesar, judges reviewing judges, heads of courts not really wanting to issue sanctions, discipline, cautions or counselling to people in their employment. It is not a very nice job to be the leader and to have to bring people in and have a discussion with them, especially if they have become close friends. So there is some justification for having some sort of external scrutiny of these matters.

What do you do if, in fact, the complaint or concern raised by someone is actually against the Chief Judge or Chief Justice? I am not suggesting, for one moment, that there is anything current in that regard; however, I make the point that, from a public perception, there is a case to say that some other person independent of the judges be available.

The bill, therefore, sets up a process that complaints against judicial officers would follow. Under the bill, a commissioner would be appointed—according to the Attorney-General that might be someone who is a retired judge, someone who has some understanding of the workloads and other duties of judges and some understanding of how the system works and how it should work—and that commissioner would be appointed on recommendation by the Attorney-General. They would hold office for seven years, and that could be renewed for a term of up to 10 years. As I said, it is likely to be a senior lawyer or a retired judicial officer. It is proposed that the appointment must be approved by the parliament's Statutory Officers Committee, and can only be removed by both houses of the parliament.

It is fair to say that we do have some other senior people who are, I suppose, watchdogs for the parliament and they include, for example, the Auditor-General, the Electoral Commissioner, and, I think, the Ombudsman (at least the principle ombudsman). They are people who are appointed by the parliament and who are accountable to us. They may be nominated and have a process that is under the supervision of a minister, but essentially they are appointed by us, they can be dismissed by us, they are accountable to us, and they usually provide annual reports to us. Similarly, to preserve the importance of having some independence, there would be a process of approval by our parliamentary structures to do that.

If a complaint is received by the commissioner he or she would then conduct a preliminary examination of the complaint. If the complaint is one to which the Independent Commissioner against Corruption applies, then that must be referred to the Office for Public Integrity and that, I should also add, is consistent with a number of other bodies that act as watchdogs for us. They have obligations to report to the Office for Public Integrity if there is conduct at that high level. Obviously we are talking of corruption and the like, so it is appropriate that any bill of this kind be consistent with that.

Further action is suspended until that process is complete but, for all the other matters, the commissioner would receive the information, notify the head of the jurisdiction relevant to the complaint received and then, I suppose, go into a process of identifying whether the complaint is of sufficient note and moment to be satisfied that further action should continue; if not, they would dismiss the complaint. They may determine that it is frivolous, vexatious or trivial, perhaps not made in good faith or not within the jurisdiction of the commissioner.

What I think the Attorney has in mind there is to ensure that if a litigant, for example, is simply unhappy with the decision lawfully assessed and undertaken by a judge, but wants to mount a complaint against the conduct of the judge as a result of their unhappiness with the decision, that in itself is not justification to go off to a new judicial complaints commissioner. There has to be some error in the approach and conduct of the judge. It will not be used as a backdoor way to relitigate matters.

If the complaint passes through these threshold tests, the commissioner can then say, 'Is it a less serious matter or is it a very serious matter?' If it is a complaint, for example, that a judge made a public statement that was ill advised or intemperate, the commissioner may say that there is no direct harm in assessing that. It is not frivolous or vexatious. There is a genuine concern, but it goes into the category of lower significance than more serious, which personally I would put into the category of unacceptable conduct by a judge during the course of a trial.

If there was treatment of persons before them that was just totally unacceptable or uncalled for, that may be something that would attract a more serious approach. There, the commissioner can still refer it across to the Chief Judge or the Chief Justice who then, under this bill, will be given powers to resolve it. One of the arguments for codifying this process of complaint is to also add into the system a means by which the Chief Judge can deal with the matter.

It is fair to say that I am sure this applies already. Sometimes, if there is behaviour of one of their judges that comes to the attention of the Chief Judge or Chief Justice, they do call them into the office and have a general discussion. It may be that a certain behaviour or apparent misconduct is as a result of some personal circumstance of a judge and that it was a unique and out of character outburst. I am just providing this as an illustration.

Judges are human after all and there will be circumstances when they are under pressure, perhaps as a result of some personal circumstance, and, with some support, that situation can be remedied. As commonly happens through these processes, the alleged victim or complainant can be brought in to have some discussion about some acknowledgement or apology where appropriate. This is something the Ombudsman does on a regular basis when he is dealing with complaints against public officers. It can have a summary and informal disposal of the matter, but this bill will help to provide for what is to occur.

Of course, the commissioner can come straight to this parliament and issue us with an interim report saying there was a serious concern. I would expect that if that were the case, that there was a complaint to the parliament directly, that would only occur, I would suggest, and I am hopeful in this regard, if the Attorney-General of the day refused to bring the matter to the attention of the parliament, and that is possible.

The existing Attorney-General may decide that there is no merit in bringing the matter to the parliament, which would be the ordinary course currently, and therefore the commissioner will have the responsibility and right to bring this matter to our attention, and we could deal with it as a parliament if we felt there was a justification of an application to remove the judge from their judicial duties by the parliament.

I have referred to the Chief Justice and the Chief Judge who deal with our superior courts in South Australia, that is, our Supreme Court, District Court and Youth Court for the moment, although that is about to get a big slice into it. It is fair to say that, in an operational manner for the magistracy, the Chief Magistrate has historically had a role in attending to the management of the behaviour of her magistrates, again with the support of having the backup of a referral to the Attorney-General.

It has a little more influence, I suggest, at the magistracy level because magistrates, from the best I can recall, do not require two houses of parliament to meet to actually dismiss them; they can be disposed of in other ways. There is a different relationship in respect of their appointment and dismissal process, and the Attorney-General and government obviously have a bigger role in relation to that.

From memory, there was an attempt to change some of that because some magistrates wanted to be upgraded to judges, and I am sure that governments love to do that, provided they do not have to pay them any more money. In any event, we have a slightly different role and certainly different jurisdictions and different powers that apply to judges compared with magistrates. The principle in this bill is to provide an independent body—in this case, a commissioner—to hear and review complaints against the conduct or misconduct of a judicial officer and, that being consistent with other states, the opposition will accept this.

As I say, we are not overjoyed that this is the big priority for the government, to rush in to make it look like they care about what is happening in the legal system, as so many South Australians are currently not able to get into court—their trials are waiting a long time and the remedy they have for redress of either compensation or seeing an alleged offender convicted is remote from them. They cannot even get access to the Victims of Crime Fund extra money, which the government has promised since before 2014—another error of remiss, I think, by the government. If they really cared about the government of South Australia they would be advancing the reforms that are necessary in those areas.

We had a Victims of Crime Fund bill tabled for consideration and further consultation back in 2014, and in six or seven months we have not heard a pip out of the Attorney-General as to what he is doing to remedy that. Meanwhile, people having their cases dealt with are still limited by the $50,000 threshold, which the government promised nearly two years ago to increase to $100,000. There is a lot he could be doing that, frankly, should have a much higher priority than this and on which $1 million a year or thereabouts would be better spent. However, we will support the passage of the bill.

Yesterday, I received a hand-delivered letter from the Attorney confirming one issue I had raised on a question of process, and that was raised by Mr Wayne Lines, the Ombudsman. As members would be aware, we now have lots of different commissioners and ombudsman-like persons who look after complaints. We have the Auditor-General, the Ombudsman, the health and welfare complaints commissioner. We currently have a police complaints commissioner who took over from the authority, although she has actually resigned and I think we have an acting one and, there is a big review happening about what happens to them. We have myriad people who look after complaints in the public arena. More recently, we have had the ICAC established, and Mr Lander is the commissioner in respect of that.

So, we have a number of them, and Mr Lines quite properly pointed out that if we are going to have another one which is to deal with judges specifically, we need to be clear about what his role is going to be. He felt that under the Ombudsman's Act that there is room for a complaint to go to the Ombudsman about a judge in certain circumstances. Historically, if that has occurred and it is of a minor nature, he may deal with it. He may refer it to the Attorney-General, he may refer it back to the Chief Justice, he may make some inquiry about that. He has some legal obligations, if there is corruption of anyone or conduct within the terms that apply under ICAC, and he is obliged to refer it to ICAC.

He wanted some clarity on whether the bill that is currently before us will just add to the confusion. He wanted it specified in the bill that his concerns be covered so that if he were to receive a complaint against a judicial officer after the passage of this bill, he would know where to refer it straightaway and there would not be an expectation that he had to otherwise deal with it. So, let's try to trim down the overlap and minimise the frustration of the complainant to start with, who might have a problem with someone in public office and think, 'Well, it's my MP, it's a judge, it's a public servant, it's someone in a public hospital somewhere, it's a welfare agency. It's corruption, so should I go to the Office for Public Integrity?' and, with myriad people, it is really quite a concern. They might be a police officer, so do you go to the Police Ombudsman? It is a bit of a nightmare for the poor old complainants.

Whilst we keep allowing for the mushrooming of all the specialist ombudsman-type roles, we are inevitably going to have overlap. We have some inquiries going on at the moment as to whom should deal with what. For example, the fracture that came upon the Police Ombudsman and her resignation last year, and the general debacle that is happening there, has required Mr Lander QC to undertake an inquiry referred to him by the Attorney to try to sort out what we do with that and, as people are reading in the paper, various bodies take different views about how that should be dealt with.

Unsurprisingly, some of the usual suspects say if you are representing the police, they say, 'We handle our own complaints and we do a pretty good job. We do not really need all these others,' and across to perhaps those who say it needs to have complete independence and the Ombudsman's office does not need to deal with it. It needs to go to ICAC or police complaints. Really, before the government just keeps coming into the house and presenting to us another specialist commissioner, it needs to sit down and appreciate that we are creating another problem, a knee-jerk reaction to come up with some quick policy to make it look like the Attorney is doing something to deal with criminal justice in this state. Dumping in another appointment is not going to resolve the bigger picture issues and it can even inadvertently add to the burden of the poor old consumer who is left with their head spinning as to whom they deal with for what.

Finally, I would like to say that, during the early announcement of this proposal, the Attorney and I both made some public statements on this. I think his initial statement, made on radio on 12 January 2015, to justify the independent judicial conduct commissioner being appointed and for him to progress this legislation was to suggest that there really had not been any great rush of complaints, and that he envisaged that this person appointed might only be needed for short periods in each year.

I suppose the terms of appointment and the obligations they will have can somewhat affect that. It may be that we end up with a judicial commissioner who only has one or two cases referred to them in a year, but they are still obliged to table an annual report in this parliament, so we may end up establishing a structure which is hardly called upon. Personally, I hope that is the case.

The other thing is that, although we are going to set up this structure, there appears to be absolutely no role for the commissioner in the discipline or management of the action to be undertaken. I am not saying that is a bad thing, but I think we need to understand that, instead of a complaint going to a Chief Justice or Chief Magistrate at the moment and generally sorting that out with the Attorney-General or representatives from his office, all we are doing is adding in someone at a commissioner level.

This role will be a bit of a watchdog, not only for that process, but obviously to review the complaint, dispose of it if it is frivolous and vexatious, or progress it back into the system, with an ultimate sanction to be able to come directly to the parliament if there is no action taken or complaint that there has been a lack of impetus into the investigation of the matter.

We are yet to see how that is actually going to operate. I thank those from the Attorney's office and, in particular, the Attorney himself, for providing a short briefing on the matter. No-one was actually provided to go through the bill itself, so we are still a little in the dark as to how it operates, but, from our side of politics, we are comfortable with that process occurring, particularly as there is no direct power of the commissioner to name and shame in the parliament, which is a process that the government seems to be following these days. This is a bit like the KI commissioner; they do not have any direct powers other than to come back to us and say, 'This naughty judge has acted in this manner; I find it unacceptable and I think you should act.'

So, we do not actually have an independent deliverer of some disciplinary action: we have an external adjudicator who is a reporter. Expensive as that is, we will not oppose the passage of this bill. We certainly hope that whomever is appointed in this role does not have a lot of work to do, but if they do, we look forward to receiving their annual report and considering their deliberations.

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