Page 4556 - Week 11 - Tuesday, 19 October 2010
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resolution requiring the removal of the judicial officer concerned. If I reach this view, I am required to request the executive to appoint a judicial commission. It is solely the task of a judicial commission to examine the complaint and the evidence, make findings as to the facts of the matter and determine whether the judicial officer’s conduct could amount to proved misbehaviour such as to warrant his or her removal from office. It is then a matter for this Assembly to determine whether to remove the judicial officer from his or her position.
After reviewing the documents provided by magistrates Burns and Fryar and taking relevant advice, I felt it incumbent on me to afford Mr Cahill appropriate fairness. I therefore extended to him an opportunity to respond, even though this was not required expressly under the act. After considering all the material, I formed the view that the complaint went to the heart of the proper performance of judicial functions and, if substantiated, could cause the Assembly to support a motion for the removal of Mr Cahill from judicial office. At no time did I form a concluded view as to the actions of Mr Cahill. As I have indicated, I am not required to undertake substantial inquiry into the complaint, and any such inquiry could, indeed, be considered to interfere with the conduct of any future commission. Once I had formed the conclusion that the complaint could justify consideration by the Assembly of a resolution requiring removal of the judicial officer, the act gave me no alternative but to progress the matter further. It was on that basis that I approached the executive requesting it to appoint a judicial commission. The executive had no discretion under the terms of the act once it received my request and proceeded to appoint a commission.
The commission comprised three eminent former judges, being the Hon James Wood AO, QC, formerly of the New South Wales Supreme Court, the Hon Jerrold Cripps QC, formerly of the New South Wales Supreme Court, and the Hon Ted Mullighan QC, formerly of the South Australian Supreme Court. No-one could doubt that a commission consisting of retired judges with such high repute as these would conduct an inquiry of the highest standards, including fairness to the judicial officer in question.
As I mentioned in my address to the Assembly on 10 November last year, the commission was established only a short time prior to Mr Cahill reaching the statutory retirement age of 65 years. I was mindful of this fact when I considered the complaint in October 2009. However, as Attorney-General, it is my responsibility to maintain the integrity of the justice system in the territory and make every effort to address any threat to public confidence in it. I could not sit back and allow such serious allegations to be disregarded simply because a statutory time frame was about to expire. Instead, I took steps to address the matter promptly with the assistance of the ACT Government Solicitor. Commission members were briefed, counsel assisting the commission was retained and a hearing room was booked at the Federal Court. The commission was ready to begin hearing the matter as early as 20 November 2009. Given the swiftness with which the commission was prepared and established, the members of the commission believed, as did I, that it was entirely possible to complete the necessary investigation and hearing process prior to Mr Cahill’s statutorily imposed retirement date of 15 December 2009.
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