Page 98 - Week 01 - Tuesday, 10 February 2015
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The second concern is that the separation of powers is muddied. The executive appoints two of the members, 50 per cent of the council. One of them is a joint nomination, I note, of the Law Society and the Bar Association. But the other one is the decision of the executive, with the only qualification that the executive must be satisfied that the person has the necessary qualifications and experience. That is pretty loose in terms of a definition. There is potential, therefore, for political intervention through this last appointment and, to a lesser extent, through the appointment of the legal practitioner.
The third caution in considering this bill is that the member nominated by the law bodies must be a legal practitioner. This creates a potential conflict for the practitioner, who must investigate a judge or a magistrate who is essentially higher up the legal hierarchy, and this conflict may be exacerbated when the practitioner inevitably appears before the judge or magistrate at a future time. The conflict also extends to the judge or magistrate in that circumstance.
Once again, an independent council, made up of judges from interstate perhaps, would overcome these conflicts—it is just the nature of our small jurisdiction that this has arisen—and it would ensure that judges and magistrates are investigated by their peers rather than subordinates in the legal hierarchy.
Finally, the bill denies appeal rights, leaving an aggrieved party with the only possible option of common law appeal through the Supreme Court. This is a concern of the Bar Association. Indeed, the Bar Association believes there is a constitutional issue here which may render the law invalid.
Further, the scrutiny committee supports that view, noting that the law may be invalid under the self-government act. I note from the Attorney-General’s response that the government did not agree with that view, saying that the work of the council “relates to an internal governance matter”. I hope he is right. There seems to be a difference of opinion here, and at some stage that may be tested.
In the event that this new legislation is used, we will be watching closely and we will receive feedback from various members of the legal fraternity to see whether there are indeed concerns with its effects as it rolls out. Whilst I support a more transparent and workable system of dealing with complaints against the judiciary, that system must also be impartial, and I am not entirely convinced that this bill fully achieves that impartiality.
In closing, Madam Assistant Speaker, I would like to thank the staff who provided us with a briefing and also thank staff from the minister’s office. I note that the minister will be moving an amendment to this bill which is pretty minor and technical in nature and I foreshadow that we will be supporting that amendment.
MR RATTENBURY (Molonglo) (5.21): l support the bill and its creation of a formal mechanism for dealing with complaints against judges and magistrates in the ACT. The current mechanism for dealing with these complaints in the territory is not ideal. Following a complaint about a judicial officer, the Attorney-General can request the
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