Page 4696 - Week 15 - Thursday, 16 December 1993
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Secondly, some concern was expressed as to the adequacy of the filtering mechanism. One suggestion was that the Bill should contain a filtering mechanism along the lines of the New South Wales Judicial Commission legislation. Under that model there is a standing commission comprising the heads of each court, on an ex-officio basis, together with a lawyer and a lay member of the community. However, given the smallness of the Territory's judicial system, I believe that a filtering mechanism along the lines of the New South Wales system would not be accepted by the community, notwithstanding that the Ombudsman could perhaps be an independent member on an ex-officio basis. Nevertheless, I recognise that the Attorney being the filtering mechanism may also be open to expressions of concern concerning his or her partiality in a particular matter. On balance I believe that the latter approach, which is in the Bill, is the preferable one.
Having said that, I think that there is considerable merit in the creation of an office of judicial ombudsman who could perform the filtering function as well as investigating and resolving minor complaints which did not merit a judicial commission process. The Swedish Ombudsman, for example, has this role and the issue has been raised several times in the Australian context. I have asked my department to give consideration to this issue.
Madam Speaker, there was a suggestion that the identity of a judicial officer should be protected prior to a commission embarking on an inquiry. Given that under the Bill a judicial officer is excused from duty when a commission is appointed, there is little point in seeking to suppress the judicial officer's name. In any event, I believe that the judicial commission process should be as transparent as possible and a secrecy provision along the lines sought would not engender public confidence in the process.
The fourth issue relates to the removal majority. Paragraph 5(2)(c) of the Bill provides that a simple majority of members present and voting is sufficient for the passage of a removal motion. This was criticised during the consultation process and submissions were made that the removal majority should be changed from two-thirds to four-fifths. In 1988 a Commonwealth working party on the transfer of the courts had recommended a majority of not less than two-thirds of the Assembly members present and voting for the passage of a removal motion. This contrasts with removal provisions under section 72 of the Constitution, the New South Wales Judicial Commission legislation and the Queensland legislation in relation to the commission of inquiry into Justice Vasta and District Court Judge Pratt which operate or operated on the basis of a simple majority to effect removal from office.
Madam Speaker, the removal of a judicial officer is a significant event. The Bill contains substantial protections: The right of written reply to a commission's report, the opportunity to address the Assembly, the fact that a removal motion can be considered by the Assembly only if a commission concludes that there is misbehaviour or incapacity which could warrant removal, and acceptance by the Assembly that the findings by a commission amount to misbehaviour or incapacity. In light of these considerations I do not believe that the unicameral nature of this Assembly or the number of members required for the passage of a removal motion is a significant factor and I believe that a simple majority is appropriate.
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