Last year the government unveiled their totally lacking plan for a toothless Commonwealth Integrity Commission. Important powers and jurisdictions were completely missing from their proposal, including oversight of the conduct of judges.
When there are complaints about the judges, it is essentially up to the judiciary to investigate itself.
This type of self-regulation does not work, it always fails. That’s why a well-resourced, powerful, independent external agency is needed and would only increase confidence in the judiciary.
Transcript
[Malcolm Roberts] And today. My question’s too are in regard to establishing Federal Integrity Commission. First question. Is it the intention of the government to consider adding to the duties of such a Federal Integrity Commission, the overview of the judiciary and other officers of the court?
I think the former Attorney General had indicated that the coverage of the judiciary was an issue under consideration, but not necessarily within the integrity commission, because of constitutional complexities, but also looking at the possibility of a separate judicial commission.
[Malcolm Roberts] So it’s true, isn’t it, that there is currently virtually no authority with jurisdiction to overview the conduct and actions of the judiciary, many of whom are appointed for life?
So the federal judges are appointed to the age of 70 and then they have to retire. The current process is that if someone has a concern about a serving judge, they raise that with the Chief Justice or chief judge of that jurisdiction. The Chief Justice or Chief Judge is empowered to either appoint a conduct committee to investigate allegations made against a sitting judge or, alternatively, the Chief Justice or Chief Judge can refer the matter directly to the Attorney General, and there’s a process of where both houses of parliament can be asked whether they wish to make an address to the government general seeking to have the removal of a sitting judge on grounds of, for example, misbehaviour. So there is that process, but the conduct committee, appointed by the Chief Justice or chief judge is the first step.
[Malcolm Roberts] So there is… thank you. There is wide support for a commission with the jurisdiction to overview the conduct of the judiciary, coming out of the recent inquiry into family law, from retired judges, from academics, from constituents, and from the legal profession itself. So at the moment the errant judge’s conduct is not addressed under an independent system. Correct? You’ve just outlined that system.
That’s correct. Well, it’s an independent conduct committee, so it’s appointed by a Chief Justice or chief judge. It’s not composed of people from that court, so it’s independent to that extent, but they make a report to the Chief Justice of that court. So, no, it’s not a standing independent commission at the moment.
[Malcolm Roberts] And to trigger it requires someone from within the system?
It requires a person to make a complaint. So that might be a litigant, who has been disappointed with how a sitting judge has behaved. It could be someone who is a staff member, an observer, it could be anyone. Anyone who has a concern about a sitting judge can make a complaint.
[Malcolm Roberts] They can make a complaint, but whether or not it goes anywhere, it still depends on someone within the system?
It will then depend upon the relevant Chief Justice and what they wish to do with that complaint.
[Malcolm Roberts] Sorry, who heads up that independent conduct committee?
So it’s a matter for the respective chief general Chief Justice.
[Malcolm Roberts] So there’s one for each court?
They can appoint one per court. So for example, if it was a complaint, Senator Roberts mentioned a family law. For example, if there was a complaint about a sitting family court or federal circuit court judge practising in family law that’d be a matter for the Chief Justice of that family court or the chief judge of the federal circuit court to appoint a conduct committee to look into that particular allegation.
[Malcolm Roberts] So I just listed some of the areas we’ve had complaints from. So given the increasing number of complaints being level of judges based on their conduct, is it not time to ensure such complaints can be examined and addressed in a timely, reasonably costed way ensuring that there are real consequences if necessary?
So wait, my colleague, Ms. noted before that the previous attorney acknowledged there is certainly a question there about whether there should be a body, an integrity body that is able to look at complaints against sitting judges. That is something that the department is continuing to work on, but there are a range of complex constitutional and other legal issues that we’re working through. Attorney General Porter had said it’s perhaps a second order issue in terms of looking at integrity commission first, and then simply look at a judicial integrity type commission but it’s something we’re continuing to work on.
[Malcolm Roberts] Thank you. So let’s change tact just for a minute for two short questions. What is being done in the way of suicide prevention for judges as well as for the victims of poor judicial behaviour?
So suicide prevention for judges is particularly a matter to address to the courts themselves in terms of what what measures they’re actually taking to looking after the wellbeing of judges sitting in the courts because things such as the allocation of work to judges and the allocation of support mechanisms are within the control of the chief judge or chief judge of each jurisdiction.
[Malcolm Roberts] So I imagine being a judge in certain circumstances would be very taxing emotionally. So it’s recognised that the stresses on judges may lead to a need for professional help for these judges. Is this assistance being provided at the moment at an adequate level?
So that would be a question better directed to to the federal courts. And I note that the family court and circuit court are appearing tomorrow, tomorrow at five o’clock.
[Malcolm Roberts] Thank you very much. And thank you chair. That’s all I have.
[Chair] Thank you very much Senator Roberts. Just as a followup question, in relation to where an independent conduct committee is appointed by Chief Justice about a complaint, a serious complaint in relation to a judge’s conduct what sanctions are available to that committee and ultimately to the Chief Justice?
It’s an excellent question To some extent there are measures that can be put into place by the head of a jurisdiction in terms of for example, does a judge require retraining or should a judge be moved from a particular court and practise in a different court. Things like that, are steps that are available to a judge. But if the concern of the head of that jurisdiction is that that judge should in fact no longer be a judge then they need to refer that to the Attorney General, who would then consider whether the matter should be brought to parliament again, for consideration of whether they should have been addressed by both houses of parliament and to seeking the removal of that sitting judge.
[Chair] Ultimately the power to remove a judge is in the hands of the parliament and the people…
In the hands of Governor General, ultimately
[Chair] Yes, but that’s obviously a very serious matter,
Extremely serious.
