Page 345 - Week 02 - Tuesday, 1 March 1994
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It gives up the right, through one of its members, to raise a matter in the Assembly concerning the conduct of a judge. If I hear that a particular member of the bench has misbehaved I do not have the discretion to come into this place and tell the Assembly what I know. Under this legislation my obligation is to advise the Attorney-General of the Government that I know these things about a particular member of the bench, and the Attorney-General of the Government then has an obligation to take the information away and decide whether it should be translated into the commissioning of a judicial commission.
Similarly, when the report of that commission comes down, the Assembly is constrained to act within the terms of that commission's report. If the commission exonerates the member of the bench concerned, the Assembly does not have the power to disregard that advice. Similarly, if it decides that the judge or magistrate stands condemned, the Assembly, as I read the legislation, must take the step of moving that motion. Madam Speaker, the capacity we have to make statements and to make decisions, which, in other respects, we have in a fairly unfettered fashion, is not the case here.
The Attorney has assured me that the provisions of proposed subsection 23(5) of this Bill, which makes it an offence for a person to publish a report or part of a report that has not been laid before the Legislative Assembly by the Attorney-General, do not affect members of the Assembly themselves; that the $20,000 fine, or imprisonment for two years, or both, is not a penalty that a member would incur in exercising their privileges before the Assembly of laying certain information before the Assembly, or making certain statements in respect of that. I am pleased to hear that because, although I strongly support this very standardised arrangement, this very ritualised arrangement, as it were, for removing judges, I do not support the removal of that discretion or that privilege from members of the Assembly.
Madam Speaker, I have to level this criticism. I found the explanatory memorandum to this Bill to be particularly useless. I do not mind the officers concerned knowing this. The fact is that all the explanatory memorandum does, basically, is summarise or paraphrase, in a not particularly succinct way, what the words that appear in the legislation say. That is not very helpful. I would hope that in future we can have explanatory memoranda which are a little bit more capable of delivering information than this particular document is.
Madam Speaker, I think that we have here a piece of legislation which will be rarely used - I certainly hope that it is rarely used - but I believe that it is important for us to have in place a process which has the agreement of the Assembly as a whole and which will be used with discretion by the Assembly as a whole. We will all understand and respect the importance of exercising the powers conferred by this legislation in only the most extreme circumstances and only in accordance with the spirit of the legislation, which both protects members of the bench in the work that they do and ensures that if they are responsible for conduct which is unbecoming they will be dealt with in a particular fashion which is respected by all sides of politics. It would be very easy for a judge's conduct or statements to be the subject of political debate. In fact, they have been the subject of political debate in this country in the last few months. I am thinking particularly of a certain judge in South Australia. In those circumstances it would be very easy to raise issues which were damaging to the independence of our judiciary. I hope that this procedure, put in place by tonight's Bills, will prevent that from occurring and ensure that we deal with these matters only with the highest regard for the independence of our judiciary.
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