Last week, Gabrielle Appleby, Dr Suzanne Le Mire, Professor Geoffrey Lindell, Anna Olijnyk, Alexander Reilly, Dr Matthew Stubbs, Adam Webster and Professor John Williams made a submission to the Senate Legal and Constitutional Affairs Committee that supported, in principle, two Bills introduced into the Parliament by the Attorney-General that introduce measures for handling complaints against the federal judiciary. Below is a brief explanation of the submission. A full copy can be accessed through the Senate Committee’s website.
On 14 March 2012, the Attorney-General introduced the Courts Legislation Amendment (Judicial Complaints) Bill 2012 (‘Judicial Complaints Bill’) and the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 (‘Parliamentary Commissions Bill’). The two Bills set up two different mechanisms to deal with complaints about judicial conduct.
Introducing transparency and accountability
The Explanatory Memorandum states the purpose of the Bills is to ‘introduce greater transparency and accountability in the handling of complaints about judicial officers’. The transparency and effectiveness of complaint handling measures against judicial officers is important for maintaining public confidence in the judiciary. At the same time, the use of such measures raises concerns about compromising the fundamental constitutional principle of judicial independence. In our submission, we focussed on the requirement of balancing the principles of accountability and judicial independence in the Bills.
Introducing processes to facilitate the resolution of complaints against the judiciary immediately raises the possibility that such processes may be abused for political ends. In Australia, a number of episodes have served to demonstrate the need to safeguard the judiciary from misconceived investigations. In particular, the myriad processes employed to investigate the conduct of Justice Lionel Murphy in the mid-1980s demonstrated the need to have a standing and consistent system of investigating complaints of misbehaviour against members of the judiciary. Other more recent episodes involving allegations of misconduct against Justices Ian Callinan and Michael Kirby have demonstrated how politicised these issues can become in the Parliament.
Each of these episodes highlights the importance of having processes in place that allow for complaints against individual judicial officers to be investigated and dealt with. The Commonwealth Constitution deals only sparingly with oversight of the federal judiciary. Section 72 provides for removal by the Governor-General in Council on a joint address from both Houses of the Parliament in the same session, praying for such removal on the grounds of ‘proved misbehaviour’ or ‘incapacity’. Neither of these terms is defined, which is an enduring source of uncertainty regarding the removal of federal judicial officers, but cannot be conclusively addressed by legislative definition, being ultimately a matter of constitutional interpretation.
With no current serious allegations against individual members of the federal judiciary, this is an appropriate time to address the question of process for the future. Our submission therefore commended the Commonwealth Government for taking this initiative. Attempting to establish a reputable process once allegations have arisen, as was the case when accusations were made against Justice Murphy in the 1980s, is inadvisable and likely to be unsuccessful in providing an investigation that is respected across the party-political spectrum as well as by the public at large.
Although we supported the two Bills in principle, there are a number of concerns we held with the current form of the Bills.
Judicial Complaints Bill
The Judicial Complaints Bill formalises what is currently the informal processes for handing complaints against judicial officers. It gives the head of the court (the Chief Justice of the Federal Court, the Chief Judge of the Family Court and the Chief Magistrate of the Federal Magistrates Court) the power to ‘handle’ complaints made about the performance by another judge of his or her judicial or official duties.
Constitutionally, the Parliament is constrained in how it can discipline federal judicial officers. It is unlikely, for example, that the Parliament can establish an independent oversight body (that is, one not composed of judicial officers) with the power to discipline judges, make recommendations binding on the Parliament in the exercise of its power under s 72, or restrict the exercise of that power in any way. Such a body would be contrary to the separation of powers implied in the Constitution, and the guarantees of judicial independence set out in Chapter III.
As such, formalising the (currently informal) role of the head of the court is a sensible way of creating greater transparency in the accountability of the judiciary and strengthening public confidence in the courts whilst maintaining, and perhaps strengthening, judicial independence and impartiality. In the context of the discipline of lawyers more generally there has been a clear shift in favour of disciplinary transparency as a method for enhancing public confidence.
Coverage of the Bill
However, we were concerned about the limited coverage of the Judicial Complaints Bill in two important respects. First, the Bill does not apply to the High Court of Australia. The overall intention of the Bill is somewhat undermined by its failure to apply to the highest court: after all, as the three episodes mentioned above, it is matters relating to Justices of the High Court that are likely to attract the most public attention, and deserve to be dealt with in a way no less transparent than matters arising in other federal courts. We therefore recommended that the Judicial Complaints Bill be amended to apply to all federal courts, including the High Court.
Secondly, the Bill does not provide for the investigation of complaints against the head of the jurisdiction. Again, the lack of complete coverage undermines the achievement of the Bill’s objectives. We recommended this could be remedied by making provision for complaints against the head of the jurisdiction to be deal with by the next most senior judge in the jurisdiction, or by a judicial officer from a higher court.
Elements of a transparent system of accountability
In order to build a transparent system for dealing with complaints about judicial conduct a number of elements should be considered that are not currently addressed by the Bill. We pointed out, for example, the process itself needs to be explained and made accessible to the public, which would include making public the standards expected of judges (This could be taken from the Guide to Judicial Conduct (2nd ed, Australasian Institute of Judicial Administration Incorporated, 2007), a document released by the Council of Chief Justices of Australia), the procedures for complaints to be made, the possible outcomes that might flow from a complaint, and the rights of complainants to be informed of the progress of their complaint. On-going information about the way the system is working should also be provided through, for example, reports containing statistical information about the numbers of complaints received and the outcomes of those complaints. This then raises a further question about whether specific information about particular complaints should be made available to the complainant or the public. A complainant may not be satisfied with a complaints system in which they are provided with no further information as to the progress of the complaint. In England and Wales, the Office for Judicial Complaints undertakes to keep the judge and the complainant updated about the progress of the complaint every four weeks. If the complaint is dismissed, the complainant is informed of the reason for this. In Canada, the Canadian Judicial Council undertakes to advise the complainant in writing after the complaint has been considered and a decision reached.
We also noted that the Bill provides no criteria by reference to which the head of jurisdiction is to handle complaints. We were concerned that by failing to set down at least guiding criteria that the head of jurisdiction ought to consider in handling complaints, the Bill undermines its chief purpose, which is to increase transparency and strengthen public confidence in the judiciary.
The Bill states that the measures the head of jurisdiction may take include ‘temporarily restricting another Judge to non-sitting duties’ but otherwise do not list any of the measures that may be used. We would suggest that other measures, including in serious cases public admonishment and reprimand, be included as potential tools available to the head of jurisdiction. This would increase the transparency of the process for complainants and the public. In terms of public admonishment, superior courts have on rare occasions voiced disquiet at errant or inappropriate behaviour by judicial officers when giving reasons in appeal cases. There may be concerns about the power to issue public admonishments and reprimands. These could decrease public confidence in the judiciary – particularly for those future litigants who may come before a reprimanded judicial officer. These are important concerns. Nonetheless, we submitted that public confidence in the judiciary will be better served by allowing complainants to know the outcome of their complaints. Public reprimand is an effective method of achieving this in appropriate cases. In England and Wales, for example, public reprimands have been issued by the Lord Chancellor and the Lord Chief Justice against members of the judiciary in serious cases. In Canada, the Canadian Judicial Council reports to the Minister of Justice and these reports are published. This can operate as a public censure even where the conduct is not serious enough to warrant recommendation that the judge be removed.
Further explanation of these submissions, and our further concerns regarding the Bill’s detail, is available in the full submission.
Parliamentary Commissions Bill
The Parliamentary Commissions Bill establishes a procedure to assist the Parliament when it is considering using its powers under s 72 of the Constitution to remove a judge for proved misbehaviour or incapacity. The Bill provides for the establishment of a Parliamentary Commission upon the resolution of both Houses of the Parliament. The Commission investigates the allegations, and is bestowed with extensive investigatory powers. The Commission reports to the Parliament, not in the form of a recommendation, but whether evidence exists which may be capable of being regarded by the Parliament as misbehaviour or incapacity.
The objective of creating a standing process that can be used if and when allegations emerge against a federal judicial officer is commendable, and past incidents demonstrate the need for it. The requirement in section 72 that there be ‘proved’ misbehaviour or incapacity indicates there must be some sort of investigation and hearing. This establishment of a Parliamentary Commission recognises that Parliament is not a suitable forum in which to commence this process.
Our major concerns with the processes set out in the Parliamentary Commissions Bill related to the membership of the Commission. The Commission is to include at least one member who is a former or serving judicial officer. First, we submitted that the Commission should be constituted entirely of former judicial officers. In 1988, the Constitutional Commission recommended that such a Commission to be an entirely judicial one. The Commission argued that judges had the expertise and experience in dealing with issues of evidence; and that the tribunal need not be representative, as the involvement of Parliament later in the process would achieve this aim. We endorsed this position. Judicial officers with experience of the demands of judicial office are in a unique position to assess the performance of a fellow judge. At a preliminary hearing, where the ability to independently evaluate a complaint is called for, the involvement of people without such experience will most likely be unhelpful, and possibly even counter-productive. The initial hearing is an opportunity for a judicial officer who is subject to a complaint to be judged by his or her peers, which injects an important element of institutional independence into the complaints process.
Secondly, we cautioned against the appointment of a serving judge of a Supreme Court of a State or Territory. Leaving to one side whether it would be constitutionally permissible, it is foreseeable that in the course of their judicial duties their judgments might be reviewed on appeal by a judicial officer whom they had investigated. In such an event, the appearance of bias would be unavoidable. There could also be a danger of the perception that such persons were seeking preferment (however unfounded the accusation may be). We submitted, therefore, that the Bill be amended to state that the Commission be constituted of former Commonwealth judicial officers or former judges of State or Territory Supreme Courts.
Overall, we supported the two Bills, which demonstrate a growing trend where accountability and transparency are becoming important aspects of public confidence in our government systems, including the judicial branch.