Page 348 - Week 02 - Tuesday, 1 March 1994
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Mr Humphries: So the courts cannot abolish us.
MR CONNOLLY: I think they were tempted from time to time, but we have survived that challenge. There has been criticism of the recent abolition by the Victorian Government of an entire bench of industrial compensation judges. Madam Speaker, we in fact stand at the forefront in Australia, to the extent that we have been prepared to entrench the independence of the judiciary in our constitutional arrangements. That has been done by a new parliament, and a parliament that from time to time people are prepared to poke fun at. Indeed, regrettably, somebody indulged in that in the Capital news tonight, basically suggesting that this is all a bit of a joke, that nobody deserves their salary and that we are all an imposition on the Canberra community. There was a very regrettable form of cheap journalism tonight. We have in fact, in a bipartisan manner, developed some quite significant constitutional arrangements here, and this is one of them. I think we should all take some pleasure from the fact that we dealt with a matter as sensitive as the relationship between the legislature, the executive government of the day and the courts on that central issue of freedom and independence of the courts, which is so essential to a vibrant democracy, in a way that has been quite uncontroversial and has garnered support from across the Assembly.
There are a couple of points that I need to reiterate. The penalty provision for a person leaking a copy of a judicial commission report before it has been tabled in this place is quite significant. It is two years' imprisonment or a $20,000 fine, and that is significant. If we were having a debate about freedom of information we could be throwing rhetoric about what a draconian measure that is. I am pleased that that is supported by members. It recognises the significance of a potentially adverse judicial commission finding and the fact that it needs to be dealt with by due process.
I can assure Mr Humphries, as he foreshadowed, that it is my clear view - I have had some advice to back that up, orally, but I have not sought counsel's advice - that it must follow from first principles that that penalty cannot apply to the privileges of members in this Assembly. If a member were so irresponsible, and I think Mr Humphries would agree, as in this place, under privilege, to publish the findings of a judicial commission before they had been properly dealt with, parliamentary privilege, which is central to our existence, would protect that person. They would not be subject to these penalties. That is a clear acknowledgment of the principal place of the Assembly in constitutional arrangements. One would hope that members would refrain from doing that.
At virtually every point in the complex process of the judicial commission's legislation there are discretions vested in the Attorney-General of the day. As long as I occupy this office - I think this would apply to anybody who occupies the office in the future - I would approach making a decision under this legislation with the highest level of gravitas. It is not a matter to be taken lightly. The filtering mechanism that we built in here, which came out of the consultation, could be seen as perhaps giving too much discretion to the executive government. Basically, we are creating a mechanism to protect the public, in the sense that we are creating a mechanism to allow complaints against judicial officers to be investigated, and we have provided a filtering mechanism, which is that the Attorney-General can exclude matters if they are frivolous or vexatious.
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