Page 344 - Week 02 - Tuesday, 1 March 1994
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I think the better view is that we have here a judicial commission process which is fairly exhaustive and which ensures that the Assembly cannot act simply on the basis of some whim, on some bee in the bonnet that some party or member might incur and which causes them to wish to move against a particular judge or magistrate. The process is far better defined than that, far more careful than that. In circumstances where a properly constituted judicial commission makes a recommendation to the Assembly that certain steps be taken, I think that a simple majority of the members of the Assembly acting on that recommendation is all that is required. I think going beyond that is unnecessary in the circumstances, and I again would support the decision of the Government that a simple majority be all that is required to operate the removal of a judge or magistrate.
There was also discussion in the public consultation process about whether judges were entitled to the recovery of their costs incurred in proceedings where they have to appear and defend their position in court. When I say "in court", I mean before the judicial commission. The point is rightly made that these proceedings can be extremely expensive and that they are, in fact, akin to a trial. The judge or magistrate concerned will need to mount a defence in much the same way as if they had been charged with some criminal misconduct. I note that the two most recent cases of removal of judges in Australia, which were in Queensland, involved costs to all the parties, or possibly just to one of the parties, of $1.92m and $815,000 respectively. It will naturally be an expensive process and it is wise for the Government to say that we should not be giving a blank cheque, so to speak, to pay those costs in all circumstances. Where there has been unequivocal acquittal - put it that way - then clearly the question of costs should not be in dispute. Where, however, there is anything less than that, I support the contention that there should be a discretion on the part of the Government as to the extent to which a member of the judiciary's costs are recoverable from the Consolidated Revenue.
Madam Speaker, I think that the other provisions in this Bill have been the subject of some debate, both in this process of public consultation and also between members of this Assembly. Since the Bill was tabled I have discussed some of these provisions at length with members of this place, and I am generally happy with the position that has been put forward. There are several amendments that the Attorney has circulated, all of which I strongly support.
I might point out, Madam Speaker, that there is a very important concept entailed in this Bill, and that is that we are dealing with this power that the Assembly might exercise in a more restrictive fashion than we deal with possibly any other particular decision that it is capable for this Assembly to make. We can move a motion of no confidence in the Chief Minister by giving seven days' notice - do not get excited, ladies and gentlemen - with certain procedural requirements having been met. That can be dealt with on that basis. The removal of a Chief Minister is a fairly momentous process, and that can be dealt with in that very well-defined fashion.
Removing a judge from the bench under this procedure will be considerably more difficult. It is much harder to remove a judge from the bench than to remove a Chief Minister from the chair over there, and that, I think, is appropriate. The Assembly gives up a number of rights in this process.
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