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Tuesday, 2 February 2010
Page: 74


Senator BARNETT (3:59 PM) —I seek leave to speak on committee reports Nos 3 and 4 from the Legal and Constitutional Affairs References Committee.

Leave granted.


Senator BARNETT —by leave—I move:

That the Senate take note of the reports.

The Legal and Constitutional Affairs References Committee report Australia’s judicial system and the role of judges was a unanimous report. I want to thank my fellow committee members, Senators Crossin, Feeney, Fisher, Ludlam and Trood and the participating members—our shadow Attorney, Senator George Brandis, and Senator Bill Heffernan—for their participation in this committee. The inquiry commenced in February last year and we reported in December just last year.

It was a lengthy inquiry. It was one of the most enjoyable and informative inquiries that I have been involved with in my time here since 2002. I very much appreciated the opportunity to learn more about the merit of the national judicial system that we have here in this country, the role of judges and their important place in our Constitution. In particular I want to draw to the attention of the Senate and the public the fact that we had 44 submissions and we had hearings in Sydney, Melbourne, Perth and Canberra. It was a lengthy inquiry but worthy of very important consideration.

The terms of reference were reasonably broad. They looked at the procedures for appointment and method of termination of judges, the term of appointment and the merit of full-time, part-time and other arrangements, jurisdictional issues, the interface between the federal and state judicial systems, and in particular the judicial complaints handling system. It is the latter point in particular that had a lot of interest in terms of the submissions and in the presentations made at the hearings we had.

The judicial complaints handling system is certainly something that is in need of reform. I am not going to great length other than to say that some of the key recommendations were set out in the report. In fact there were 16 and I just want to highlight some of the recommendations in the report. I know that the government is giving this serious consideration and I appreciate that on behalf of the committee members and the committee participants. At this juncture I do want to thank the secretariat, Peter Hallahan and his team, Toni Dawes, who has just recently resigned from the Legal and Constitutional Affairs Committee, and I thank her for her support, and Cassimah Mackay and the team at the secretariat.

We have recommended that the High Court of Australia adopt a written complaint handling policy and make it publicly available. It will be interesting to hear the response to that at the Senate estimates next week when we have the opportunity to address them on that matter. We have recommended that all Federal Courts publish quarterly complaint handling summary status reports, and we have made recommendations about the appointment of federal judicial officers. We support a nationally consistent compulsory retirement age for judicial officers and encourage each jurisdiction to implement it within the next four years. The committee has recommended that at the next Commonwealth referendum section 72 of the Constitution should be amended in relation to the compulsory retirement age for judges. Currently it is 70 years, and the committee is of the view that it should increase perhaps to 72 years or thereabouts, essentially to provide that the federal judicial officers are appointed until an age fixed by the parliament. This would provide some flexibility, and I think there is a lot of common sense in that recommendation. Again, I hope the government and all members of parliament support such an approach.

We made recommendations in respect of the merit of short- and long-term part-time working arrangements. We had issues in Tasmania, for example, which were quite precarious and controversial, where the Attorney made appointments down there which were certainly against the best interests of the public in Tasmania. There were other examples put to the committee so we have made recommendations there.

Probably the main recommendation out of this report is in favour of the establishment of a federal judicial commission modelled on the Judicial Commission of New South Wales. It would include three functions in particular: it would include a complaints handling system; it would assist the courts to achieve consistency in sentencing; and it would provide a service for the judicial education of our judges wherever they may be around the country. In that regard, I notice that the Tasmanian Attorney-General has accepted our second proposition. They have just announced in the last seven days a better and more consistent approach to providing sentencing and assisting judges in the judging and sentencing arrangements.

The committee felt strongly that the current avenues of complaint are seriously inadequate. They need to be improved and upgraded. We have quoted in the report Sir Anthony Mason, who said:

… the constitutional procedure does not address cases of misconduct or incapacity which are incapable of justifying removal. A judge may be guilty of delay, discourtesy, gender bias or of less serious misconduct which does not justify removal but could merit an expression of disapproval, a caution or counselling by a head of jurisdiction.

We go further to say that there should be an independent national judicial commission that would be established and ensure that that process was not only done fairly and properly but would be seen to be done fairly and properly, and we give further evidence in that regard.

We had an informal tour of the Judicial Commission of New South Wales. On behalf of the committee, I want to put on record our thanks to Mr Ernest Schmatt PSM, Chief Executive of the Judicial Commission of New South Wales, for his tremendous support and encouragement and the informative review he provided to members of the committee and the secretariat with respect to what is happening in New South Wales. That commission was established in 1986 and is regarded highly not only in Australia but around the world. It is an excellent system that operates well in New South Wales. I commend him and the New South Wales commission. It is that prototype that we are recommending at the national level.

There has been a lot of media on this topic, and on our report in particular, since the December release of the report. I know that even today in the Australian Financial Review there is a call for a national judiciary which is supported by New South Wales Chief Justice Jim Spigelman. I notice that the Attorney-General, Robert McClelland, called critics of the reform process short-sighted and said that ‘the government would consider unilateral action if necessary to ensure the reforms came to fruition’. We have recommended that the functions currently fulfilled by the National Judicial College of Australia be incorporated into a new judicial commission and that legislation be introduced into the federal parliament to establish a national judicial commission.

On that note, I commend the report to the Senate. I think there is a lot of merit in it. The feedback since the report was released has been very positive. Of course budgetary constraints are very important, but I note that in New South Wales there is $5.1 million for the Judicial Commission per year. One-third of all the judicial officers in Australia operate in the New South Wales courts. So I think in terms of cost benefit, the benefits will flow as a result of the establishment of the commission. I commend the report to the Senate and look forward to receiving feedback from the government in due course.