Page 343 - Week 02 - Tuesday, 1 March 1994
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Madam Speaker, there has been discussion about the contents of this Bill. That discussion has occurred in the months since the Government laid on the public table the exposure draft of this Judicial Commissions Bill. The result, I think, has been a healthy process of give and take, to which the Attorney-General has referred in his presentation speech. I want to go through some of the things that were raised in that presentation speech and indicate my support of the decisions that the Attorney has made with respect to those issues. I have no doubt that some members of the judiciary raised matters of concern, and those have been dealt with in this process.
Madam Speaker, I understand that there was support for a discretion to be vested in the Attorney-General not to act upon certain sorts of complaints made to him or to the Government concerning members of the judiciary, particularly complaints which are frivolous or vexatious. The Government has decided that that discretion ought to occur and has conferred on the Attorney-General the power to decline to act upon a complaint which he considers to be of that nature. There is a safety valve in that circumstance. The Assembly does have the power, in the event that the Executive decides not to act on such a complaint, or the Attorney decides not to act on such a complaint, to initiate a judicial commission. Although at the first instance the Attorney-General can decide that a particular complaint is vexatious or frivolous, there is a capacity for others to take a different view.
Another concern raised was about what the Attorney calls the filtering mechanism. This was the concept that there be certain stages before you get to the ultimate stage of a vote in this place to remove a judge or magistrate. The suggestion was made that there ought to be a standing commission comprising the heads of each court in the ACT on an ex officio basis, together with, for example, a lawyer and a lay member of the community. The Attorney discussed this option at some length and then took the view that the present arrangement, which is a more streamlined one, is a better course of action, and I would respectfully agree with his view. He does say, though, that there is merit in the concept of a judicial ombudsman - presumably, that office could be combined with the ombudsman that already exists in the ACT - and I think that that view is also worth consideration in the future. For the time being, however, the present arrangements are satisfactory.
There was a suggestion that the identity of a judicial officer who was named in proceedings of this kind should be protected, that the identity should be suppressed. The Attorney takes the view that that ought not to be the case, and again I think that is a sensible view to adopt. A member of the bench who is subject to these proceedings obviously will be well known within legal circles, and probably much more widely in the ACT, it being such a small place.
There was debate also in the course of this public consultation period about the size of the majority needed in this Assembly to remove a judge or magistrate. The suggestion was made that there ought to be a two-thirds or even a four-fifths majority of this place for that to occur. There is some attraction in the concept that members of our bench who are appointed to exercise their judgment fearlessly, without favour, ought to have special protection. Perhaps there is a case for saying that they should be removed by the political process only where a high degree of consensus exists across chambers such as this for that to occur.
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