JUDICIAL CONDUCT COMMISSIONER BILL

Wednesday 13 May, 2015

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.

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.