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Courts Legislation Amendment (Judicial Complaints) Bill 2012

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2010 - 2011 - 2012

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

COURTS LEGISLATION AMENDMENT (JUDICIAL COMPLAINTS) BILL 2012

 

 

ADDENDUM TO THE

EXPLANATORY MEMORANDUM

 

 

 

(Circulated by the authority of the Attorney-General,

the Honourable Nicola Roxon MP)



STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS (p4)

At the end of paragraph 22, insert the following sentence:

The Bill also indirectly engages the right to respect for privacy and the right to work and employment under Articles 22 and 27 respectively of the Convention on the Rights of Persons with Disabilities (‘CRPD’). 

At the end of paragraph 23, add the following text:

Article 22 of the CRPD provides a corresponding right to privacy to Article 17 of the ICCPR for persons with disabilities. Specifically, Article 22 requires the privacy of personal, health and rehabilitation information of persons with disabilities to be protected on an equal basis with others. 

At the end of paragraph 25, add the following text:

Participation by a judicial officer who is subject to complaints handling processes within the court is voluntary.  In circumstances where a judicial officer provides personal information in a complaints handling process (such as about a physical or mental disability), this amendment will protect the privacy of this information.  In this way, the Bill provides for safeguards to protect privacy of persons with disabilities on an equal basis with others while maintaining fairness and flexibility of complaints handling processes within the court. 

Right to work and employment on an equal basis

Article 27 of the CRPD protects the right of persons with disabilities to work on an equal basis with others.  This includes protection against discrimination in the workplace and provision of reasonable accommodation to persons with disabilities in the workplace.

Federal judicial officers have security of tenure under the Constitution.   Paragraph 72(ii) of the Constitution is the only basis on which a judicial officer may be removed from office Paragraph 72(ii) of the Constitution provides the federal judicial officers shall not be removed except by the Governor-General in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity.  The Bill does not seek to define or limit the concept of incapacity as a constitutional basis for removal of a judge from office under paragraph 72(ii) of the Constitution.

Recognising the need to balance public interest considerations and the rights of judicial officers, the Bill supports a broad and flexible process for complaints handling about judicial officers within the courts to enable a head of jurisdiction to handle complaints appropriately and sensitively in each case. 

While supporting the powers of a head of jurisdiction to take measures where they believe it reasonably necessary in order to maintain public confidence in the Court, the Bill does not limit the power of a head of jurisdiction to provide reasonable accommodation for a judicial officer with a disability so that the judicial officer can properly undertake their functions.  

The Bill does not affect current provisions in Court legislation which require heads of jurisdiction to provide judicial officers with appropriate access to (or reimbursement for the



cost of) annual health assessments or short-term counselling services (see Family Law Act 1975 , paragraph 21B(1A)(b); Federal Court of Australia Act 1976 , paragraph 15(1AA)(b); Federal Magistrates Act 1999 , paragraph 12(3)(b)).

The Bill is not discriminatory in dealing with allegations of incapacity.  Participation in complaints handling processes by judicial officers is voluntary.  

For these reasons, the Bill is consistent with and generally advances the protection of these rights.  To the extent that it may also limit these rights, those limitations are aimed at a legitimate objective and are reasonable, necessary and proportionate.