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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

Debate resumed.

Mr TARZIA (Hartley) (12:35): I also rise today to support the Judicial Conduct Commissioner Bill 2015. Much has been said about the independence of the judiciary and the separation of powers. There are three kinds of powers that are generally exercised, one being the legislative power that we here exercise, followed by the executive power, and then the judicial power, which is seen as the power to give what is a binding decision according to a law and which usually follows from a dispute between certain people, sometimes also involving the state.

The independence of the judiciary is certainly a very important thing. In fact, Montesquieu wrote once that '…there is no liberty, if the judiciary power be not separated from the legislative and executive.' It is a very important thing. It is extremely important.

There are a number of factors in judicial independence. Judges are appointed by the government of the day and so the decision that is made by the executive of the day is a very important one. Obviously judges are not appointed based on their political leanings. They are appointed on the basis of how suitable they are and the merits. It is extremely important. We must, as a parliament, show very high respect for the decisions of our judges and the decisions of our courts. A judge is certainly not accountable in the same way we are. Judges have a tough role and we need to respect that role. They are open to scrutiny. Their judgements are made public and, whilst we can critique those judgements, we must respect the judgements that they make. The law is equal for all and we need to respect that independence of the judiciary.

Here we are: another day, another inquiry, another commissioner, same Attorney-General—who talks about access to judgement, talks about all kinds of new—

An honourable member interjecting:

Mr TARZIA: It is the same Attorney-General, I know. There are a number of things in the courts that need improving. We all know that he has cut funding to the Courts Administration Authority, which I keep harping on about. We all know that courts are being shut down left, right and centre, and there was especially the appalling decision to shut down a court in the north-east. There are talks about access to justice. There is no doubt that we have significant issues in our court system that need fixing, but here we are talking about the Judicial Conduct Commissioner Bill today.

Whilst the independence of the judiciary needs to be protected, sometimes there are complaints amongst judicial officers. I understand that there is no current system in place that deals with complaints against those judicial officers, other than the complainant contacting what would usually be the head of the jurisdiction of the judge in question.

There are obviously many available avenues to pursue with regard to these sorts of disputes interstate. The ACT has a similar scheme to the Federal Court, but it is established under the Judicial Commissions Act 1994 and the commissioner is actually appointed by the Attorney-General and not the parliament. The Federal Court has a system of dealing with complaints against judges by the establishment, I believe, of what is an ad hoc judicial commission to deal with each case. New South Wales has a judicial commission, notably, and that is established by the Judicial Officers Act 1986 and that consists of the heads of the New South Wales jurisdiction's ex officio.

In Victoria, there was, I believe, a judicial commissioner bill in 2010, which was similar to the New South Wales model, but it has not been enacted. Finally, in Western Australia their Law Reform Commission examined a policy on this in 2012. The New South Wales model was broadly recommended, but it has not been enacted to date.

The Law Society have a fair bit to say in regards to this bill, and they raise a number of very important issues. The first concern that I would like to raise with the house is the provision for dealing with lower-level misconduct. I think it is important, and I ask the Attorney-General to take this feedback on board, from the Law Society, because they certainly express some concern that there is no provision for dealing with lower-level misconduct. They also make mention of the fact that there seems to be a very high threshold for section 14. I certainly encourage the Attorney-General to take those comments on board.

The Law Society say that there is substantial concern in the profession that relates to lower-level misconduct. They refer to it as mostly being judicial bullying. They also have a concern, on the second page of their submission, about delayed judgements. We have only scratched the surface in relation to delayed judgements. There are a number of judgements that have not been delivered for sometimes horrendous amounts of time that certainly need attention; that is for sure.

We have to take the Law Society seriously, because many practitioners are part of the society. They believe, for various reasons, that judicial heads have not succeeded in positively influencing low-level misconduct by a judicial officer. They recommend that the commissioner is empowered to discipline or take action against the judicial officer in the event of an unsatisfactory outcome after the matter has been referred to the jurisdictional head. I hope that the Attorney-General will also take that into consideration.

In relation to what exactly misconduct is, the Law Society also make a very sensible assertion, and that is that the bill does not provide a guide in the nature of the code of conduct which identifies modes of behaviour amounting to misconduct. I think the Attorney should certainly look at that. What is the Attorney-General's view of what misconduct is? I hope that that will certainly come out in the debate. The society has recommended the inclusion of a form of a code of conduct, if only in general terms and expressed inclusively.

The society also has concerns about whether a complainant should be identified. I look forward to hearing the Attorney-General's view about why a complainant needs to be identified. The Law Society says that it appears unnecessary and it seems to discourage the making of complaints. I think that is quite valuable. Obviously, sometimes a complainant may want to make a complaint and remain anonymous. Why should a valid complaint in such a sensitive area have to have the requirement that the complainant identify who they are? I am sure that sometimes there may be merit for a complainant not to be identified. I understand a complaint must have credibility, but I am looking forward to hearing the Attorney speak to us about that.

They also make the interesting point that it is worth noting that sometimes the complainant will not always be the victim. Whilst we may sometimes think that the complainant will be the victim, and sometimes they will be the victim, that is for sure, it is not always the case. I think the Attorney should definitely have reference to that point from the Law Society; it is a very good one. The complainant will not always be a victim of judicial misconduct. They may, for example, make a complaint on behalf of a legal practitioner, perhaps after they have seen an incident, it may have been in court, and the Law Society says that it is unnecessary and counterproductive to mandate identification of the complainant.

So, there are some very interesting points of view from the Law Society. I hope the Attorney-General will keep them on board. I look forward to hearing his explanation on those matters in due course, for the benefit of the society and this bill. Overall, I am happy to support the Judicial Conduct Commissioner Bill 2015 and I commend it to the house.

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Housing and Urban Development, Minister for Industrial Relations, Minister for Child Protection Reform) (12:45): I thank those members who have contributed in relation to this legislation. First of all, I do appreciate the fact that there is general support for this proposition. This is a great thing and I am very impressed.

Mr Gardner interjecting:

The Hon. J.R. RAU: I am being very careful; I am not overcooking it. We have had a number of submissions from different people about this bill. Broadly speaking, there is support for the bill. I say to you, Madam Deputy Speaker, and other members, that my expectation is that the actual need for this legislation to be used, even in its preliminary form, will be relatively small. One matter that has been of concern to me is that this does not become yet another vehicle for the disgruntled, the slightly obsessive—

Mr Tarzia: Vexatious.

The Hon. J.R. RAU: —and the vexatious. Whilst we have attempted to remove the declared vexatious people from this—and I believe the commissioner who oversees the legal profession looks with envious eyes at that particular proposal and would love that to be extended to him, and I intend in due course to do that, can I say, because I think Mr May deserves to spend his time doing things of merit rather than things that have no merit—I have listened to the comments that have been made and I think this piece of legislation provides an opportunity for the public in general, members of the legal profession and, quite frankly, the judiciary to see an improvement in what is, by and large, not a bad system as things stand but can always be improved.

What I propose to do is to, in a moment, close the second reading debate and move into committee, but I indicate to members that my intention is to then immediately adjourn so that I can consider all of the remarks that have been made today in light of, for example, the submissions from the Law Society and whatnot, and if there are little bits of tweaking that I can offer the parliament, my intention would be to work on those between now and when we resume tomorrow and provide members opposite with as much advance notice of those tweaks as possible. Then, in the committee stage, I can explain in more detail why the tweaking is going on and what the tweaking is intended to do.

Ms Chapman interjecting:

The Hon. J.R. RAU: Yes; a few people have highlighted things and I have gone through the thing again and again in an attempt to make sure I have covered off everything I intended to cover off. I will give one example which occurred to me only recently, and I am working on a form of words which will capture this at the moment, and, Matthew, this is probably news for you too, but here we go. It did occur to me that there may be a material difference between a person making a complaint about the conduct of a judicial officer post trial to a person making a conduct complaint during a trial.

If a conduct complaint is made during a trial, it is not inconceivable—because there are some very reprehensible people out there, fortunately very few, and some of them are lawyers and a number of litigants—that someone might decide that, in order to try to intimidate this judicial officer who is hearing their case, they will start peppering the conduct commission with all of these spurious grievances about that judicial officer, in the expectation that the commissioner will then have to initiate the initial investigation, that the initial investigation will come to the attention of the judicial officer, and the judicial officer thereby will be intimidated by the fact that this is going on. That would be a very unsatisfactory outcome from my viewpoint. It would in fact deliver the opposite of what the Law Society is concerned about: it would deliver the opportunity of bullying of judicial officers, which would be a perverse outcome, in my opinion.

Ms Chapman: What about civil matters?

The Hon. J.R. RAU: And in civil matters, indeed.

Ms Chapman interjecting:

The Hon. J.R. RAU: Yes. My initial thinking was that we should say that the complaints would need to be complaints that were made post the disposition of the matter. The only problem I have with that is: what if the complaint is, 'I had my trial four years ago and I still haven't got a judgement,' which I would think would be a legitimate matter to complain about.

I am looking for a form of words that will capture, as best I can, what I have just tried to explain to the house, which is that I want to eliminate the possibility of this progressive opportunity for members of the public to be able to have recourse if a judge goes off the rails to be perverted into something that allows some sort of thug to bully a judge. Anyway, more of that tomorrow.

Ms Chapman: Solve it overnight.

The Hon. J.R. RAU: I think Matthew has solved it already, now that he has heard about it. I appreciate the support I am picking up from members opposite. I know the member for Bragg and the member for Hartley would know that from time to time some judicial officers overstep the mark, and they may need to be acquainted with the fact that doing so would not go at least unnoticed. You would notice also that in this legislation we have picked up, virtually word for word, the federal court provisions, which enable the Chief Justice of the Federal Court to be able to provide some sort of supervision or management of Federal Court judges, and that is something that is completely absent here, totally absent.

It not only means that members of the public have more opportunity to try to ask questions, if they legitimately have them, but it also means that the Chief Justice, the Chief Judge of the District Court and the Chief Magistrate will be given more capability to provide instruction and some degree of management of their own people, rather than just asking them to do it and hoping they will do what they are asked. That is really the end of my contribution on that, and in a moment I will move that we go into committee.

Bill read a second time.

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