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Monday, 31 May 2010
Page: 4709


Mr KERR (7:25 PM) —The Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill 2010 establishes the independent Parliamentary (Judicial Misbehaviour or Incapacity) Commission. The commission is designed to assist the parliament in the exercise of its constitutional responsibility if instances of alleged misbehaviour by or incapacity of any justice are referred to it by either this House or the Senate.

The bill should be read together with the proposed standing order ‘Address for removal of federal justice’ published in my name in the Notice Paper. If the bill becomes an act it will be incumbent on the House and the Senate to adopt such procedures to ensure that the processes in this bill are not triggered for trivial reasons or without procedural fairness.

Because the time for this debate is limited I will not repeat remarks I made when introducing the bill to the House on 22 February 2010. I would request that that speech be referred to as explaining this bill for the purposes of its interpretation as if it were incorporated in this second reading debate.

Judicial independence is an essential bulwark against all excess of power. Yet, as the Chief Justice of the High Court has recently affirmed, the authority of the law and the legitimacy of the judiciary depend upon public confidence. If no settled and transparent process exists to respond to instances of alleged serious wrongdoing by or incapacity of federal judges and magistrates we gamble with that confidence.

The drafters of our Constitution protected the independence of each justice appointed under chapter 3 by guaranteeing them secure tenure—originally for life, now to the age of 70—while authorising their removal for cause for proved misbehaviour or incapacity.

Professor Blackshield observes that section 72 ‘has a double purpose: to ensure that no-one but parliament can remove a judge from office, but also to ensure that parliament can’. The exercise of that power requires the concurrence of both the House of Representatives and the Senate.

Sadly the Murphy affair more than 30 years ago demonstrated how singularly ill-equipped our parliamentary procedures were to discharge that weighty responsibility. We have made no improvements since then. For those who question why we must act when serious allegations against federal judicial office holders are rare and when no immediate allegation against a judge is in prospect there are two answers. The first is that the time to ensure the balance is right. In ensuring both fairness and rigour, when nothing controversial is on the horizon, we can be dispassionate and uninfluenced by partisan considerations. The second is that the number of federal justices appointed under chapter 3 has grown exponentially.

Human nature being as it is, as the number of federal justices now exceeds those of many states, instances requiring the attention of the parliament will almost certainly arise. We should be ready for that and armed with a fair and just mechanisms that are known in advance both to the parliament and to the judge before any issue of controversy explodes. It is quite implausible that either the House or the Senate could deal with serious allegations against a justice without the assistance of a preliminary investigation of a body of the kind proposed by this measure. Parliament should not risk being again left to adopt ad hoc responses shaped in the heat of crisis.

I refer members who desire a more comprehensive account of the rationale for this bill to an excellent paper by Tom Browne prepared as part of the Australian National Internships Program. That paper appends a comprehensive literature review.

I thank the shadow Attorney-General, Senator George Brandis SC, who has worked with me to refine this legislation. It has been improved by his input. I understand he will sponsor the amended bill in the Senate after its passage through this place and has obtained the support of the opposition party to that end. It is sensible that a measure such as this will emerge as the product of the work of private members and senators who are also senior members of the bar rather than as a bill sponsored by the government. It makes it clear, if there was any suspicion, that this is not pursued by the executive to chasten the courts.

I also express appreciation to my colleagues in the caucus who voted to allow me to introduce this bill as a private member. I thank the Attorney-General for making available to me the expertise of his department and the drafting skills of the Office of Parliamentary Counsel respectively to suggest and draft amendments to the bill to better ensure its consistency with other legislation. I thank the Clerk of the House and his officers for their assistance with the first draft of the bill. I thank the Greens and the Independents I have discussed this bill with for their acceptance of the necessity for it. I thank the Leader of the House and the Whips for recognising the importance of allowing time for this debate and its resolution.

Finally, I foreshadow that on the third reading I will be moving the agreed amendments standing in my name. An explanation of those amendments is included in the supplementary explanatory memorandum. I seek leave to table the supplementary explanatory memorandum and the ANIP paper that I referred to.

Leave granted.