Page 100 - Week 01 - Tuesday, 10 February 2015
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“conduct division” which essentially performs the role that the new ACT judicial council will perform. Members may have heard about several well-reported cases that have been referred to the New South Wales judicial commission.
My view is that the New South Wales judicial commission has provided a valuable service in New South Wales. Establishing a judicial council is an interesting proposal and it raises important questions about the delineation of judicial independence and judicial accountability. At the time that New South Wales established its commission, concerns were raised that it would unduly increase the centralised executive control over judicial administration and introduce hierarchical structures that would impinge on judicial independence.
Ivan Potas, who has a respected history in law matters, especially criminology and sentencing, and who was formerly the ACT official visitor for the AMC, wrote a review of the New South Wales judicial commission in 2000. He said:
What the Commission has done is to raise the bar of accountability in a way that allows the judiciary to remain at arm’s length from the other organs of government. The Commission stands as a reminder that judges and magistrates are not immune from criticism and that certain procedures will be set in motion if, and only if, there are grounds for questioning either the propriety of judicial conduct or the capacity (ability) of judicial officers to perform at a level commensurate with their responsibilities. The establishment of the Commission is itself illustrative of the community’s desire to achieve high levels of judicial performance and accountability without encroaching unduly on the principle of judicial independence.
I think that that is an important goal to strive for. I agree that it is paramount that judges remain independent and free of the political process but also that an efficient system for complaints about judicial officers is appropriate. As Mr Potas says in his review, it would be unrealistic to expect that all judges will always act in accordance with the highest ethical and judicial standards. He quotes Murray Gleeson QC, who of course was to later become the Chief Justice of the High Court and who said that it cannot be merely a theoretical possibility that some judges are unsuitable for office and that the only really bad judges are dead ones.
Of course, it is worth noting that, at its heart, the scheme set up by the bill before us maintains the principle of judicial independence, as the Assembly still finally determines if a judicial officer should be removed or not. The actual removal of a judge from office is such a serious matter that it is even spelled out in the commonwealth constitution. It states that justices of the High Court and other courts created by the parliament “shall not be removed except by the Governor-General in Council, on an address from both houses of the parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity”. States and territories largely mirror this process for their own courts and parliaments. In the ACT a judicial officer can be removed if the Legislative Assembly passes a resolution requiring the removal on the ground of misbehaviour or physical or mental incapacity, following a judicial commission and an opportunity for the judicial officer to respond, including by addressing the Assembly.
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