Page 4697 - Week 15 - Thursday, 16 December 1993
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Fifthly, concern was expressed that, given the nature of judicial office, it is inappropriate to leave the question of costs to the discretion of the Government or the outcome of the inquiry. In this context subclause 59(2) provides for the reasonable legal costs of an exonerated judicial officer to be paid by the Territory. A parallel was drawn with the High Court's recent decision in Dietrich's case concerning the right of an accused in criminal proceedings to representation and that, from the standpoint of a judicial officer, an inquiry is equivalent to a trial for a serious criminal offence.
The Queensland commission of inquiry into the conduct of Justice Vasta considered that unless special consideration was given to the payment of a judge's costs it would erode judicial independence by putting pressure on judges. Whilst I accept that there is some force in this proposition, I believe that it is inappropriate for the Territory to be exposed to large claims of costs regardless of the merits of the particular case. Accordingly, I believe that it is appropriate that the question of the judicial officers' costs be considered on a case-by-case basis. Subclause 59(2) as drafted would not prevent the grant of financial assistance on an ex gratia basis in appropriate cases, even where there has been a finding adverse to the judge.
Madam Speaker, a further matter which I wish to raise relates to the membership of a commission. I mentioned earlier that the members will be judges or retired 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, acting judges and sitting High Court judges. As members would be aware, additional judges are judges who hold commissions as Supreme Court judges but whose primary commission is with another court, usually the Federal Court. Additional judges are used to supplement the resources of the three resident judges.
Concern was expressed that additional judges should not be able to form part of a commission. The essential reason is that Supreme Court judges should not be seen to be investigating other Supreme Court judges. Given that additional judges hold their primary commission on another court, I do not think that there is either an actual or a real perception of a conflict of interest in additional judges sitting as part of a commission. There are presently 12 Federal Court judges who are additional judges. If they were precluded from sitting as part of a commission there would be a substantial reduction in the availability of judges to sit on a commission. Accordingly, the Bill does not exclude additional judges from being part of a commission.
The Supreme Court (Amendment) Bill (No. 2) 1993, which I recently introduced into the Assembly, will create a new class of acting judge. The Judicial Commissions Bill excludes a person who holds such a commission from being a member of the commission, since an acting judge's primary functions will be in relation to the Supreme Court. Finally, Madam Speaker, the exclusion of judicial review of a commission's findings attracted criticism. I believe, in view of the nature of the judicial commission process and that the Assembly is the final arbiter, that the exclusion of judicial review is the appropriate course to take. Madam Speaker, I commend the Bill to the Assembly and present the explanatory memorandum to the Bill.
Debate (on motion by Mr Humphries) adjourned.
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