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Wednesday, 14 March 2012
Page: 2785

Ms ROXON (GellibrandAttorney-General and Minister for Emergency Management) (09:01): I move:

That this bill be now read a second time.

I am pleased to introduce legislation to strengthen and enhance systems for managing complaints about the conduct of federal judicial officers.

The first bill, the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill, which I will speak to now, deals with the role of the parliament when considering removal of a judge under the Constitution.

The second bill, the Courts Legislation Amendment (Judicial Complaints) Bill, deals with the management of complaints within the courts.

This Labor government is determined to ensure that the Federal Court system delivers accessible, equitable and understandable justice—one which protects and serves individual complainants at the same standard as large corporate players enjoy.

That is because an independent and impartial judiciary, in which the public has confidence that their rights will be protected and their complaints dealt with speedily and transparently, is one of the foundations of our democratic society.

In a mature, strong democracy such as Australia, it is easy to underestimate how critical these foundations are.

Judges form an integral part of the justice system in Australia and serve the community by declaring and upholding the law.

Australia continues to be very well served by its judiciary.

Consistent with the rule of law, our judiciary must always be accountable in relation to the exercise of judicial power.

An important mechanism for ensuring judicial accountability includes effective complaints handling processes, in a manner consistent with the independence of the judiciary.

The Senate Legal and Constitutional Affairs Committee stated in its 2009 report Australia's judicial system and the role of judges that:

Fair and effective complaints handling is a critical component of a judicial system that is both respected and just, and seen to be so.

That there have been few serious complaints about judges is testament to the high calibre of our judiciary and their commitment to the responsibility entrusted to them as holders of judicial office.

Instances of removal of judges from office in Australia have been extremely rare.

Since Federation, the size of Australia's Commonwealth judiciary has expanded to over 80 judges and 62 federal magistrates, and so we must ensure that we continue to support the independence and high quality of our judiciary into the future.

The Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill provides a standard mechanism to assist the parliament in its consideration of removal from office of a judge or federal magistrate under the Constitution.

The Courts Legislation Amendment (Judicial Complaints) Bill, also to be introduced today as part of the government's package of reforms, provides legislative support for a process within the courts to assist the chief justices of the Federal Court and the Family Court, and the Chief Federal Magistrate to manage complaints about judicial officers that are referred to them.

Together these bills provide a clear, accountable and effective system for handling complaints about federal judicial officers. Importantly, they were developed in consultation with, and are supported by, the heads of federal court jurisdiction.

Constitutional removal of judges

Under Australia's Constitution, the power to remove a federal judicial officer lies with the Governor-General in Council on an address from both houses of the parliament in the same session, praying for removal on the ground of proved misbehaviour or incapacity.

This constitutional requirement goes to the very heart of the independence of the judiciary.

It upholds the separation of the limbs of government and strengthens public confidence in the Commonwealth judiciary by providing a mechanism that enables the parliament to seek removal of a judge who is found to be unfit to hold judicial office.

By requiring the conduct of a judge to amount to 'proved misbehaviour or incapacity' in the estimation of both houses of the parliament, the Constitution ensures that only the most serious complaints against judges are considered.

In the event of a serious complaint about a judge, where the parliament is called upon to consider removal, there is currently no standard way to assist the parliament to discharge its constitutional responsibilities.

While serious complaints about judges are extremely rare, previous cases have highlighted the uncertainty about how serious complaints about judges could be fairly and appropriately investigated by the parliament.

It is therefore important that a clear, understandable and fair framework is in place in the event that a serious complaint about judicial misbehaviour and incapacity were to arise.

Key features of the b ill

This bill establishes an effective tool that the parliament can employ to inform itself about the factual basis of an allegation of serious misbehaviour or incapacity against a Commonwealth judicial officer.

The bill provides a fair and transparent process for the investigation of an allegation which can be used flexibly depending on the different circumstances which may arise. The bill enables the parliament to establish a parliamentary commission where a resolution is passed by each house of the parliament, in the same sittings, to investigate a specified allegation about a specified Commonwealth judicial officer.

It is up to the parliament to decide whether and when a commission is needed.

A commission would provide for an independent investigation into the factual basis of the allegation, in order to provide parliament with appropriate evidence for its consideration.

A commission would in no way usurp parliament's role in determining whether the conduct of a judicial officer amounted to proved misbehaviour or incapacity.

The bill reflects the non-partisan nature of a commission by requiring its members to be appointed through resolution of each house of the parliament, and with nominees to be put forward following consultation between the Prime Minister and Leader of the Opposition.

The bill establishes transparent processes for a commission's investigation and report to the parliament.

In particular, the bill gives a commission the powers and protections it needs to operate effectively, while maintaining appropriate safeguards.

It enables a commission to operate in an inquisitorial manner, similar to the way that parliamentary committees operate.

A commission will be required to act in accordance with the rules of natural justice, and the bill specifies procedures a commission must follow to ensure the Commonwealth judicial officer who is the subject of an investigation is treated fairly.

Chapter III of the Constitution establishes the independence of the Commonwealth judiciary from other limbs of government.

Consistent with this independence, a commission would not have power to require the participation of current and former Commonwealth judicial officers in its investigation into an allegation.

Commonwealth judicial officers could still participate and assist a commission's investigation should they choose to do so.


The government has consulted across the executive, judiciary and the parliament in development of the bill.

The government is grateful for the views and suggestions of those significant stakeholders who have assisted to refine the bill.

I would particularly like to acknowledge the efforts of the former member for Denison, Hon. Duncan Kerr, in providing a valuable foundation for this bill.

Together with its companion bill, the Courts Legislation Amendment (Judicial Complaints) Bill, they will considerably improve the current ad hoc and somewhat opaque system of judicial complaints handling.


In Australia we must never take our constitutional strengths and system of governance for granted. Confidence in our democracy rests on continued improvement and vigilance.

These bills are important steps on the path, taken by this reformist Labor government, to ensure our federal judicial system is responsive, impartial, and capable of resolving serious complaints.

I commend the bill to the House.

Debate adjourned.