In this blog post, Gabrielle Appleby comments on the recent calls by President of Fair Work Australia, Justice Iain Ross, to bring the tribunal under the new complaints handling processes proposed for federal courts.
Last week, Fair Work Australia (FWA) President, Justice Iain Ross of the Federal Court, was calling for FWA to be covered by two Bills currently before the Parliament, the Courts Legislation Amendment (Judicial Complaints) Bill 2012 and Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012. Justice Ross’ proposal is currently under consideration by the federal Minister for Workplace Relations Bill Shorten. I think that Justice Ross’ calls highlight an important oversight in the current processes, but I would like to see the government give greater consideration to how to bring accountability and transparency to the tribunal system before simply extending the judicial complaints process, limited as it must be, to tribunals.
The Bills establish two separate systems. The Parliamentary Commissions Bill allows for the Parliament to establish a parliamentary commission to investigate allegations of misbehavior or incapacity against a judge and recommend back to the Parliament whether evidence exists which may be capable of being regarded by the Parliament as misbehaviour or incapacity. The Judicial Complaints Bill formalises the role of 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), giving each the power to ‘handle’ complaints made about the performance by another judge in his or her judicial or official duties. (The Bills are currently before the Senate Legal and Constitutional Affairs Committee, you can read about the Adelaide Law School’s submission to the Committee on some earlier blogs here and here).
Tribunals and Courts
In our justice system, many people now settle their disputes in the non-judicial arena using the extensive tribunal system. This largely reflects the length, cost and formality of seeking redress in the courts. If the government’s policy is to bring greater accountability and transparency to the broader justice system, it makes sense at one level to extend the proposed measures to the tribunal system.
Justice Ross’ comments pick up on many similarities between FWA and the federal judiciary. Particularly, under s 641 of the Fair Work Act 2009 (Cth), the Governor-General may terminate the appointments of FWA members on an address of both Houses of Parliament on the grounds of proved misbehaviour or physical or mental incapacity. This section largely mirrors the guarantees of tenure for federal court judges in s 72 of the Constitution (although other sections allow for suspension of a FWA member, and removal on other grounds, which is not mirrored in the judicial setting). FWA is not alone in sharing these traits with the courts, similar provisions protect, for example, the tenure of the members of the Administrative Appeals Tribunal and the Australian Human Rights Commission.
The Parliamentary Commissions Bill
Given the similarities between the removal provisions between FWA members and the judiciary, there is a strong argument that the Parliamentary Commissions Bill should apply to these (and other) tribunal members as well. Although, even without expressly bringing these members under the Bill, the Parliament would be able to establish a committee to investigate a tribunal member in the same way on an ad hoc basis.
The Judicial Complaints Bill
Whether tribunals should be brought under the Judicial Complaints Bill is, however, a more difficult question. There are important differences between the bodies. Tribunals are quasi-independent from the Executive. They are established by legislation and while they may have statutory protections of tenure, this is not the same as the constitutional protection of independence guaranteed to the federal judiciary.
The Commonwealth faces constitutional limitations in introducing measures for handling complaints against the federal judiciary because of the constitutional protections of independence. For example, it would probably be constitutionally impermissible to establish an independent oversight body (that is, one not composed of judicial officers) with the power to discipline judges. This is the type of body that has been introduced in New South Wales, where the separation of powers is less strict than at the federal level. As the federal government operates within constitutional restraints when legislating for the federal judiciary, the mechanisms introduced in the Judicial Complaints Bill are a good compromise. They add greater transparency and accountability to the courts without breaching the limits in the Constitution. If, however, the constitutional limitations did not apply, other options would be available for consideration.
The constitutional restrictions do not apply to tribunal members. Tribunals are situated somewhere between the courts and the Executive. Tribunals are not subject to administrative oversight mechanisms such as the Ombudsman, or the Public Service Commissioner. As such, calls for a process that introduces greater transparency and accountability for these bodies correctly identifies a hole that should be plugged.
However, before the Government extends the Bill to cover tribunals such as FWA, it should consider whether an external, independent oversight body would be a better option. Such a body would be able to be entirely independent of the tribunal system. Such a proposal also avoids the question about how to deal with complaints against the head of the tribunal, which is a deficit in the current Bill.
Why extend the proposed judicial complaints-handling system, limited as it must be by constitutional restraints, to tribunal members? Why not consider the matter with fresh eyes? All options are available to the government if it decides to tackle the challenge of bringing accountability and transparency to an important part of our justice system.
Gabrielle Appleby is a Senior Lecturer at the Adelaide Law School. She recently co-authored a submission to the Senate Legal and Constitutional Affairs Committee on the Parliamentary Commissions and Judicial Complaints Bills.