Page 1918 - Week 07 - Thursday, 20 August 1992
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In the same speech I also said:
Events in recent years in the Commonwealth and Queensland parliaments have dramatically focused public and judicial attention on the question of removal of judges from office. In an address to the Australian Bar Association in 1990, Mr Justice McGarvie of the Supreme Court of Victoria pointed out that those events demonstrated that traditional parliamentary procedures in such cases were unable in any satisfactory way to ascertain what had occurred or whether what had occurred could warrant removal of a judge from office.
The Judicial Commissions Bill deals with the removal of judicial officers and has been drafted in conformity with the relevant amendments to the self-government Act. It takes the investigation of allegations away from the legislature and hands it to an impartial and expert body. The Judicial Commissions Bill provides for allegations concerning a judicial officer's conduct or capacity to be investigated by an independent judicial commission of three members, appointed by the Executive and drawn from persons who are, or have been, judges of superior courts of record, including judges of other courts who hold commissions on the Supreme Court as additional judges, but excluding the three resident judges of the Supreme Court and sitting High Court judges. One of the members shall be appointed by the Executive to be presiding member.
A commission's task will be to investigate allegations referred to it by the ACT Legislative Assembly or the Attorney-General. A judicial officer will be removed from office by the ACT Executive, but only at the request by motion of the Legislative Assembly following the Assembly's consideration of a report of a judicial commission in which the commission concludes that the alleged misbehaviour or alleged physical or mental incapacity of the judicial officer concerned could amount to proved misbehaviour or incapacity warranting his or her removal from office and the Assembly's acceptance of the findings of the commission.
In August 1990 the Honourable Mr Justice Brennan of the High Court, in delivering the Blackburn lecture, reminded the legal profession of the central importance of judicial independence, saying that he would not venture to predict how the tenure of judges of proposed courts of the ACT would be protected. The mechanism which I have just outlined provides the answer, and ensures that the judiciary and magistracy of the ACT will remain free from political interference.
Aside from the Commonwealth, no other Australian jurisdiction has a set of comprehensive and entrenched protections for its judiciary. An independent judiciary is free to interpret and enforce the laws independently of the legislature or the Executive. It is the bulwark of freedom in a society such as Australia's. Protection against arbitrary removal from judicial office is an important element of judicial independence. As Sir Ninian Stephen pointed out several years ago, once appointed, judicial officers hold office, in effect, for the remainder of their working lives, and only in the most exceptional cases are they answerable for the propriety of their conduct. It is, of course, axiomatic that, in return for the protection and independence given to it, the judiciary must exhibit the highest standards of integrity, both on and off the bench.
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