Commonwealth of Australia Explanatory Memoranda

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JUDICIAL MISBEHAVIOUR AND INCAPACITY (PARLIAMENTARY COMMISSIONS) BILL 2012

                        2010 - 2011 - 2012




  THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA




                HOUSE OF REPRESENTATIVES




JUDICIAL MISBEHAVIOUR AND INCAPACITY (PARLIAMENTARY
                COMMISSIONS) BILL 2012



                   ADDENDUM TO THE
               EXPLANATORY MEMORANDUM




        (Circulated by the authority of the Attorney-General,
                 the Honourable Nicola Roxon MP)
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS (p4)

At the end of paragraph 22, insert the following sentence:

The Bill also engages the right to respect for privacy and the right to work and employment
under Articles 22 and 27 respectively of the Convention on the Rights of Persons with
Disabilities (`CRPD').

At the end of paragraph 33, add the following text:
Article 22 of the CRPD provides a corresponding right to privacy to Article 17 of the ICCPR
for persons with disabilities. Specifically, Article 22 requires the privacy of personal, health
and rehabilitation information of persons with disabilities to be protected on an equal basis
with others.

At the end of paragraph 25, add the following text:

Where a Commission is investigating a judicial officer who may have a disability in relation
to an allegation of incapacity, the Bill includes a number of provisions that support judges
who are the subject of an investigation in a way that also protects the privacy of personal
information. For example:

·   a Commission is not bound by the rules of evidence and may be informed on any matter
    in any manner it thinks fit. This provision provides flexibility for a Commission to be
    able to appropriately and sensitively inform itself in relation to issues of personal
    incapacity (clause 19).

·   a Commission must act in accordance with the rules of natural justice (clause 20). This
    includes requirements for a Commission to provide a judicial officer with opportunity to
    comment on material received by a Commission and allow a judicial officer to obtain and
    present medical evidence in relation to their personal capacity. The provisions also
    provide opportunities for a judicial officer to respond to material at intervals throughout
    an investigation, enabling a judicial officer to provide comment should circumstances of
    any alleged incapacity change.

·   a Commission must hold its hearings in public, but may direct that all or part of its
    hearings be held in private if satisfied it is desirable to do so (clause 23). This would
    enable a Commission to accommodate the particular sensitivities of a complaint or a
    condition affecting a judicial officer. The Bill specifies who may be present at a private
    hearing, and creates an offence for unauthorised presence at hearing.

·   Current and former judicial officers are exempted from being compelled as a witness
    before a Commission (clause 25).

·   a Commission has the ability to prepare a separate report on sensitive matters
    (subclause 48(6)). This enables personal and sensitive information to be protected, when
    considered appropriate by a Commission.

The Bill provides a Commission with discretion to enable an investigation to be tailored to
the particular circumstances of each case and to balance competing interests, such as respect
for privacy and the desirability of open and transparent proceedings.
After paragraph 42, add the following text:

Right to work and employment on an equal basis

Article 27 of the CRPD protects the right of persons with disabilities to work on an equal
basis with others. This includes protection against discrimination in the workplace and
provision of reasonable accommodation to persons with disabilities in the workplace.

The Bill does not directly engage the right of persons with disabilities to work on an equal
basis with others. Rather, the Bill establishes a process for investigating allegations of
misbehaviour or incapacity.

Under the Bill, a Commission is not empowered to remove a judicial officer from office.
Federal judicial officers have security of tenure under the Constitution. Paragraph 72(ii) of
the Constitution is the only basis on which a judicial officer may be removed from office.
Paragraph 72(ii) provides that federal judicial officers 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. The
Bill does not seek to define or limit the concept of incapacity as a constitutional basis for
removal of a judge from office under paragraph 72(ii) of the Constitution.

The Bill appropriately balances public interest considerations of public confidence in the
judiciary and the rights of individual judicial officers by establishing a process for
investigation of allegations of incapacity in relation to a judicial officer who may have a
disability.

A Commission established under the Bill would not limit Parliament's role under paragraph
72(ii) of the Constitution. A Commission's role is limited to inquiring into allegations
specified in a resolution of the Houses of the Parliament and gathering information and
evidence so the Parliament could be well informed in its consideration of the removal of a
judge under paragraph 72(ii) of the Constitution.

The Bill is not discriminatory in dealing with allegations relating to incapacity. The Bill
provides clear and transparent powers and processes for a Commission's investigation. For
example:

· The Bill requires a Commission to act in accordance with the rules of natural justice and
  includes opportunities for a judicial officer who is the subject of an investigation, to
  respond to allegations involving issues of personal incapacity.

· A Commission may hold a hearing at any place in Australia determined by the
  Commission. This provision allows a Commission to be considerate of a judicial officer
  who may have limited capacity to travel when determining the location(s) of a hearing.
  The Bill provides that the procedure at the hearing is as the Commission directs and the
  judicial officer who is the subject of a Commission's investigation may attend and
  participate in the hearing with the assistance of legal representation.

The Bill is consistent with and generally advances the protection of these rights. To the
extent that it may also limit these rights, those limitations are aimed at a legitimate objective
and are reasonable, necessary and proportionate.
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