Page 4738 - Week 13 - Tuesday, 10 November 2009
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Assembly of a motion requiring removal of the judicial officer. I wish to stress to members it is not for me to judge whether or not the allegations that have been made are true, and I am making no such judgement. The threshold for my decision is whether or not the complaint, if substantiated by a judicial commission, would justify consideration by the Legislative Assembly of a motion requiring removal from office of the judicial officer for misbehaviour.
I believe that the complaint I received from magistrates Burns and Fryar on 23 October should be treated as a complaint for the purposes of the act. I further believe that the complaint, if substantiated, would justify consideration by the Legislative Assembly of a motion requiring the removal from office of the Chief Magistrate. The complaint is a serious one. If proved, the alleged behaviour could amount to an attempt to influence the conduct of a proceeding.
Whilst any possible criminal charges are currently being investigated by the Australian Federal Police, I am still bound to acknowledge the gravity of the alleged behaviour. As the head of the ACT Magistrates Court, the Chief Magistrate must lead by example and act in an ethical and proper manner at all times.
Whether or not any criminal charge is laid or proved, the conduct of the Chief Magistrate, if established, may represent an attempt to influence the outcome of a criminal matter currently before the court, and this would be misbehaviour. Conduct such as that alleged in the complaint is unacceptable from any judicial officer and leads me to conclude that, if proved, the Legislative Assembly could consider a motion to remove the Chief Magistrate from office.
I have had close regard to the fact that the Chief Magistrate is required to retire from his office on 15 December when he reaches the statutory age limit of 65. I have concluded that, whether the complaint was made with six years, six weeks or six days left in the magistrate’s term of appointment, the complaint must be dealt with on its merits and in accordance with the act.
Therefore I advise the Assembly that today I have requested that the government establish a judicial commission and that that request has been accepted. The commission will be comprised of three retired Supreme Court judges from other jurisdictions. The commission will conduct its business in accordance with the act and the government will provide such assistance to the commission as it requires.
I wish to also foreshadow to members that, should the commission advise it is unable to complete its inquiries and present its report before the Chief Magistrate’s statutory retirement date of 15 December this year, the government will propose amendments to the Judicial Commissions Act to allow the commission to complete its work after 15 December.
As a result of the decision to establish the inquiry, and pursuant to section 19(1) of the act, the Chief Magistrate is excused from performing his functions as Chief Magistrate. I know that this decision today will shock and sadden many in the Canberra community, particularly the legal profession. I share those feelings; yet I must also reiterate that the proper administration of justice and maintenance of
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