Bills Digest no. 172 2011–12

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WARNING: This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Moira Coombs
Law and Bills Digest Section
26 June 2012

Contents
Purpose
Background
Financial implications
Statement of Compatibility with Human Rights
Key provisions
Schedule 1—Amendments
Concluding comments

Date introduced:  14 March 2012

House:  House of Representatives

Portfolio:  Attorney-General

Commencement:  Sections 1 to 3 commence on Royal Assent. Schedule 1 will commence on a day fixed by Proclamation or the day after a six month period has elapsed from Royal Assent, if the provisions have not commenced within that period.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill's home page, or through http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation. When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website at http://www.comlaw.gov.au/.

Purpose

The purpose of the Courts Legislation Amendment (Judicial Complaints) Bill 2012 (the Judicial Complaints Bill) is to amend the Family Law Act 1975, Federal Court of Australia Act 1976 and the Federal Magistrates Act 1999 to support and formalise the complaints handling mechanism of the courts where complaints against judicial officers are received and handled by the respective heads of jurisdiction (that is the Chief Justices of the Family Court of Australia and the Federal Court of Australia and the Chief Magistrate of the Federal Magistrates Court). People participating in a complaint handling process (that is the Chief Justice or Chief Magistrate, complaint handlers, witnesses and lawyers assisting or appearing on behalf of a person before a complaint handler) have immunity from suit.

The Bill also proposes amendments to the Freedom of Information Act 1982 by making documents related to the complaints handling process exempt from the operation of that Act.

Background

The Judicial Complaints Bill is a companion bill to the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 (the Parliamentary Commissions Bill). The Parliamentary Commissions Bill proposes to enable the Parliament to set up a Parliamentary Commission following a resolution by each House to investigate specified allegations of misbehaviour or incapacity concerning a Commonwealth judicial officer. Justices of the High Court are covered by that Bill. However, the Judicial Complaints Bill does not include the High Court in the proposed structures to deal with complaints about federal court judges.

Basis of policy commitment

Parliamentary Commission

The Government has decided against setting up a standing judicial commission primarily because the need to deal with issues concerning the removal of a judge from office occurs so rarely. The Attorney-General’s Department elaborated on this, stating that:

Establishing a Commission when one is required is a more practical and efficient approach than a standing Commission as it is difficult to predict when and how often the Parliament may be called upon to discharge its responsibilities under paragraph 72(ii) of the Constitution.[1]

The Department further commented in its submission to the Senate Standing Committee on Legal and Constitutional Affairs, that the Australian Law Reform Commission had emphasised in its report in 2000 the ‘importance of a process within Parliament, rather than creating a commission as a creature of the executive, because of the terms of section 72(ii) of the Constitution’.[2]

In the absence of a standing Commission such as the Judicial Commission of New South Wales, the Judicial Complaints Bill provides the framework to deal with complaints about judges which are not serious enough to require the attention of a parliamentary commission. In a submission to the Senate Committee, the Gilbert & Tobin Centre of Public Law stated that:

[the Judicial Complaints] Bill is perhaps the more significant of the two under examination. It provides a more explicit statutory basis for the heads of jurisdiction to manage complaints against the officers of their courts. In particular, it empowers the creation of a Conduct Committee to investigate those complaints the seriousness of which warrants particular attention, but not necessarily that of the parliament. Two former Chief Justices, Sir Anthony Mason and Murray Gleeson, have cited the lack of a process for complaints based upon conduct falling short of that which would warrant removal as a very real difficulty with present arrangements.[3]

Judicial Accountability

Managing Justice: a review of the federal justice system

A major inquiry was completed by the Australian Law Reform Commission (ALRC) in 1999 regarding  access to the federal justice system. An Advisory Group of eminent judges, lawyers and others supported the work of the ALRC. The ALRC also established a number of working groups to provide specialist information in specific areas.[4] In relation to judicial accountability and complaints against judicial officers, the report commented:

Any system of accountability for judicial officers must be premised upon the fact that the independence of the judiciary is a cornerstone of our system of justice and democracy.

Traditionally, judicial accountability is seen to be fully provided for in the common law system by having judges functioning in open courts; hearing both sides of the question in dispute; providing written reasons for their decisions; and subject to review by higher courts. Professor Shetreet’s classic study of judicial accountability in England found that this institutional scrutiny is supplemented in practice by other mechanisms (formal and informal) used for ‘checking’ judges, including the parliament, the media, appellate courts, the legal profession and the writings of academic commentators.[5]

The ALRC report states that informal means of accountability also exist such as peer pressure and the moral and administrative authority of the chief judge of each jurisdiction. Former Chief Justice of the Federal Court of Australia, Justice Michael Black, commented at the time:

The history of the federal judiciary in Australia...has demonstrated that [within the Chapter III protection of the independence of the judiciary] the traditional mechanisms of accountability and consensual internal governance of courts [have] maintained a system in which bona fide complaints are extremely rare. Within the federal judiciary, self-administration has had a powerful role in enhancing judicial accountability. The governance of the Federal Court is essentially collegiate in character, involving committees of judges and senior registry staff and meetings of the whole Court from time to time, and an Annual Report to Parliament. This form of governance is a powerful, positive influence, through peer and collegiate pressures, upon individual performance and accountability.[6]   

High Court not included in this Bill—why?

The High Court is not included in the provisions relating to federal courts in the Judicial Complaints Bill. In 2009, the Senate Legal and Constitutional Affairs References Committee reported on its inquiry into Australia’s Judicial System and the Role of Judges.[7] The Committee recommended in that report:

the High Court of Australia adopt a written complaint handling policy and make it publicly available, including on its website, within 1 month of the tabling of this report.

In the Government response to the report, the Government noted the recommendation and that its implementation was a matter for the High Court of Australia.[8] Subsequently the then Attorney-General, Robert McClelland, received a letter from the Chief Justice of the High Court in December 2009 relating to this recommendation where His Honour stated:

Section 72 of the Constitution provides that the Justices of the High Court shall not be removed from office ‘except by the Governor-General in Council, on an address from both Houses of the Parliament in the same session, ... on the ground of proved misbehaviour or incapacity’.

There is no statutory or other basis for establishing any procedure for ‘handling complaints’ against Justices of the High Court. Because it seems inevitable that any question as to the constitutional validity of procedures of that kind would come to this Court for decision, the Court will make no further comment on this issue.[9] 

The Law Council of Australia specifically stated its view on the position of the High Court in relation to establishing a judicial complaints body in a submission to an ALRC inquiry in 1999[10] and again in 2009 to a Senate Committee:

The justices of the High Court of Australia should be excluded expressly from any legislation establishing a federal judicial complaints body.

This is because of the High Court’s essential apex role in Australia’s justice system. Given the High Court’s role under the Commonwealth Constitution, the Law Council considers it singularly inappropriate that the High Court justices should be placed in a position where they may have to consider a justiciable complaint against one of their number, arising from a complaint made about that High Court judge to the federal judicial complaints body. Even worse, by analogy with the litigation [in relation to Justice Bruce and the JCNSW] the prospect of the High Court judicially reviewing the work of a federal judicial complaints body in relation to one of its own number, is too appalling to contemplate.

The Law Council considers it imperative that the conduct of a High Court judge should remain firmly for sole consideration and scrutinisation by the two Houses of parliament.[11] 

The Government has taken these views into consideration by excluding the High Court from the operation of this Bill. The Attorney-General stated in her second reading speech:

This Bill will not apply to the High Court.

That is because the High Court’s position at the apex of the Australian judicial system means that it could be called upon to determine the validity of any structure established to handle judicial complaints.[12]

However, not everyone agrees with this position, as indicated in a submission to the Senate Committee from the University of Adelaide Law School:

The High Court has in the past had to consider legislation that directly touched upon the judiciary and did so without fear or favour. The overall intention of the Bill is somewhat undermined by its failure to apply to the highest court: after all, as the three episodes mentioned at the start of our submission demonstrate, it is matters relating to Justices of the High Court that are likely to attract the most public attention, and deserve to be dealt with in a way no less transparent than matters arising in other federal courts. We recommend that the Judicial Complaints Bill be amended to apply to all federal courts, including the High Court.[13]

It is interesting to note that the Law Council has altered its view somewhat when it comments ‘that to the extent that we have changed our view, it is informed also by the additional experience of [the] judicial commission and the fact that that appears to us to be doing a good job, I think that, now we are thinking about it more, it has come to take a greater place.’[14]

Complaints against heads of jurisdictions

The University of Adelaide Law School submission to the Senate Committee also noted that the Judicial Complaints Bill did not provide for the investigation of complaints against heads of jurisdiction. They claimed this could be remedied by the next most senior judge in the jurisdiction dealing with the matter or a judicial officer from a higher court.[15]  However in answer to a question on notice during the Senate Committee hearings, the Attorney-General’s Department’s view was that:

The power to consider and handle a complaint under the Judicial Complaints Bill reflects the head of jurisdiction’s position in the court. It would be inappropriate and impractical to have a head of jurisdiction consider or handle a complaint relating to themselves. The Bill does not intend for another judicial officer to consider or handle a complaint about the head of jurisdiction as it is considered inappropriate to have the conduct of a head of jurisdiction subjected to scrutiny within that court by designated persons who occupy positions lower in the judicial hierarchy...

Heads of jurisdiction are subject to section 72(ii) of the Constitution and would be covered by the Parliamentary Commissions Bill. Serious concerns about the conduct of a head of jurisdiction that may warrant removal from office would be able to be referred for the Parliament to consider under paragraph 72(ii) of the Constitution. There is nothing in the Judicial Complaints Bill which would prevent this from occurring.[16]

It is unclear in the Bill as to the procedure that would apply to heads of jurisdiction. It would suggest that such complaints would come to the parliamentary commission through the Attorney-General. There is really no procedure to deal with complaints of a less serious nature.

Judicial Incapacity

Submissions to the Senate Legal and Constitutional Affairs Committee’s Inquiry into this Bill and the Parliamentary Commissions Bill have drawn attention to the absence of provisions or criteria which guide the head of jurisdiction in relation judicial incapacity. The submission by the Gilbert & Tobin Centre for Public Law highlighted the absence of provisions in both Bills that assist either a Parliamentary Commission or a conduct committee to ‘investigate the possibility and degree of incapacity arising from the mental health of a judge against whom a complaint has been made.’[17]  The  submission further commented:

As recent experience has shown, incidences of mental or psychological incapacity (that are far less immediately detectable than a physical impairment and yet likely to be a much greater impediment to fulfilment of judicial duties) demand particular care.[18]

In the current Bill, the head of jurisdiction may decide to establish a conduct committee (which is one of the non-statutory processes set out in the Explanatory Memorandum), and arrange for complaint handlers to assist the head of jurisdiction to investigate the matter.[19] However there is no provision made in the Bill for investigating matters concerning incapacity in the absence of a complaint.[20]

Committee consideration

House Standing Committee on Social Policy and Legal Affairs

On 15 March 2012, the House Selection Committee asked the House Standing Committee on Social Policy and Legal Affairs to inquire into and report on this Bill together with the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012.

Senate Standing Committee for the Scrutiny of Bills

In its consideration of the Bill, the Senate Scrutiny of Bills Committee commented on three aspects of the Bill.  The first area of comment related to the broad discretion given to the Chief Judge or Chief Magistrate (as appropriate) in dealing with a complaint under items 5, 18 and 28 of Schedule 1 to the Bill. These provisions allow the head of jurisdiction to take any measures that he or she believes are necessary to maintain public confidence in the Court, including but not limited to temporarily restricting another judge to non-sitting duties.[21] While drawing Senators’ attention to the provisions ‘as they may be considered to make rights, liberties or obligations unduly dependent upon insufficiently defined administrative powers’, the Committee left the question of whether the proposed approach is appropriate to the consideration of the Senate as a whole, in the context that: 

To the extent that there is a requirement that a belief must arise that a measure is necessary to facilitate the maintenance of public confidence in the court, the discretionary power to impose measures is not entirely at large.[22]

The second area of comment by the Scrutiny of Bills Committee concerned  the broad exclusion of documents of a court that relate to complaints handling process from the operation of the Freedom of Information Act,   as these provisions may be considered to unduly trespass on personal rights and liberties.[23] However, taking into account the Explanatory Memorandum’s justification that this exclusion is necessary to protect potentially sensitive information and the argument in the Statement of Compatibility with Human Rights that the exclusion ‘advances human rights by protecting privacy and reputation’, the Committee concluded that this matter was better left to the Senate as whole to consider.

The final area of comment by the Committee concerned the non-statutory nature of the complaint handling processes, specifically questions surrounding the extent to which an officer of the Commonwealth exercising non-statutory administrative powers is bound by procedural fairness obligations.  The Committee stated:

 Although such powers are, in principle, subject to review, the Committee would prefer that the legislation is explicit on this point.[24]

Accordingly, the Committee sought:

... the Attorney-General’s advice as to the justification for the proposed approach and requests advice as to whether the legislation can be amended to ensure that procedural fairness obligations apply to the non-statutory aspects of the complaints process.[25]   

In her response the Attorney-General noted:

The framework is intended to provide a broad and flexible model that augments complaints procedures that currently operate within the federal courts. As the seriousness and nature of a complaint may vary, a flexible approach towards complaints management by heads of jurisdiction means responses to complaints can be prompt and tailored to the relevant circumstances.

Development of the non-statutory model will address specific procedural fairness requirements in the process of dealing with a complaint. I do not therefore consider that inclusion of specific obligations under this legislation is necessary.

On this basis, I do not consider that the Bill trespasses unduly on personal rights and liberties.[26]

Taking the Attorney-General’s response into account, the Committee concluded that a decision on whether the proposed approach is appropriate should be left to the Senate as a whole to determine. However, the Committee noted its view that

it would be possible to state in the legislation that procedural fairness obligations apply to the non-statutory aspects of the complaints process. The rules of procedural fairness at common law are responsive to the decision-making context, so this would allow the legislation to be explicit about the principle while retaining flexibility in dealing with complaints.[27]

Senate Standing Committee on Legal and Constitutional Affairs

On 22 March 2012, the Senate jointly referred the Courts Legislation Amendment (Judicial Complaints) Bill 2012 and the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012 to the Senate Committee on Legal and Constitutional Affairs for inquiry and report.

The Committee is due to report on 13 July 2012.[28]

Financial implications

The Explanatory Memorandum states that the ‘proposed Bill will not have any significant financial impact.’[29]

Statement of Compatibility with Human Rights

This statement is part of the Explanatory Memorandum and is prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. The Explanatory Memorandum refers to certain human rights engaged by the Bill. The Bill engages the right to privacy and reputation and the right to a fair hearing under Articles 17 and 14 of the International Covenant on Civil and Political Rights (ICCPR) and the right not to be unjustly deprived of work under Article 6 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).[30]

Right to privacy and reputation

In excluding [complaint handling documents] these documents from the FOI Act, the Bill advances human rights by protecting the privacy and reputation of those involved in internal handling of complaints about judicial officers within the courts.[31]

Right to a fair hearing

This Bill provides legislative support for a largely non-statutory framework for handling complaints about judicial officers within the courts. The seriousness and nature of a complaint may vary widely. The framework will provide a broad and flexible model that augments complaints procedures that currently operate within the federal courts.[32]

Right not to be unjustly deprived of work

The Bill does not enable formal disciplinary action to be taken against a judicial officer. It supports the powers of a head of jurisdiction to take measures where a head of jurisdiction believes it necessary in order to maintain public confidence in the Court.[33]

The Explanatory Memorandum also states that to the extent that the Bill ‘may also limit human rights, those limitations are reasonable and proportionate’.[34]

Key provisions

Schedule 1—Amendments

The Bill proposes amendments to the Acts governing the Family Court, the Federal Court of Australia and the Federal Magistrates Court.  The content of the provisions relating to each Court is identical in substance, therefore only the provisions relating to the Federal Court will be dealt with here.

Amendments to the Federal Court of Australia Act 1976

Items 14 to 17 insert into section 4 of the Federal Court of Australia Act definitions for the terms complaint, complaint handler, handle and relevant belief.[35]

Definition of relevant belief

As defined in item 17, a person has a relevant belief in relation to a complaint about a judge if he/she believes that certain circumstances giving rise to the complaint could , if substantiated, justify the removal of a judge under paragraph 72(ii) of the Constitution (proposed paragraph a) of the definition of relevant belief to be inserted in section 4) or adversely affect the performance of judicial or official duties by the judge,  or the reputation of the Court (proposed paragraph (b) of the definition). 

Section 15 of the Federal Court of Australia Act deals with the arrangement of the business of the Court. Specifically, existing subsection 15(1AA) specifies the powers of the Chief Justice in discharging his or her responsibility for ensuring the effective, orderly and expeditious discharge of the business of the Court.  Item 18 inserts proposed paragraphs 15(1AA)(c) and (d) to provide the Chief Justice with additional powers  to deal with a complaint concerning a judge’s  performance of judicial or official duties as set out in proposed subsection 15(1AAA) (discussed below) and to take whatever measures are considered necessary to maintain public confidence in the Court. This may include temporarily restricting the judge to non-sitting duties.[36]  It should be noted that the latter power (to take whatever measures are considered necessary to maintain public confidence in the Court) may be exercised in the absence of a complaint.  

Handling a complaint

Item 19 inserts proposed subsection 15(1AAA) into the Federal Court of Australia Act, which sets out the manner in which a complaint about a judge may be handled.[37] The Chief Justice may deal with a complaint about another Judge by deciding whether or not to handle the complaint and then either:

• dismiss the complaint
• if the Chief Justice has a relevant belief in relation to the complaint, handle the complaint
• arrange for complaint handlers to assist the Chief Justice in handling the complaint.

The Chief Justice may arrange for complaint handlers to assist with this process. Proposed subsection 15(1AAB) provides that the Chief Justice may authorise in writing a person or body to:

• assist the Chief Justice to handle complaints
• decide whether or not to handle a complaint
• dismiss complaints
• handle complaints.

Protection and immunity

Item 22 inserts proposed section 18XA into the Federal Court of Australia Act to provide for the protection of persons involved in handling complaints about judges.[38] It is placed in Division 4 of Part IIA of the Act, which deals the miscellaneous administrative matters of the Court. Existing section 18X deals with proceedings arising out of the management of the administrative affairs of the Court under Part IIA of the Act (which deals with the management of the Court). Proposed subsection 18XA(1) provides that a complaint handler has the same protection and immunity as a Justice of the High Court when exercising powers under paragraph 15(1AA)(c) (dealing with a complaint) and subsection 15(1AAA) (how a complaint is dealt with).  The Chief Justice has the same protections when authorising a person or body under subsection 15(1AAB) to assist in handling complaints (proposed subsection 18XA(2)).

Proposed subsection 18XA(3) provides that a witness appearing before a complaint handler has the protection and is subject to the same liabilities as a witness before the High Court. Proposed subsection 18XA(4) provides that a lawyer assisting or appearing for a person before the complaint handler has the same protection and immunity as a barrister appearing for a party before the High Court.

Item 23 provides that the amendments made by  items 14—22 apply on or after commencement of the Bill, regardless of whether the complaint was made before or after commencement or the circumstances giving rise to the complaint occurred before or after that commencement.[39]

Freedom of Information Act 1982

Item 35 of Schedule 1 to the Bill inserts proposed subsection 5(1A) into the Freedom of Information Act to exempt a document of the Federal Court which relates to a complaint handler under from the application of the FOI Act when the complaint handler is exercising, or assisting in exercising, powers or functions under paragraph 15(1AA)(c) and subsection 15(1AAA) of the Federal Court of Australia Act.  Proposed subsections 5(1B) and (1C) of the Freedom of Information Act, exempt equivalent documents relating to the Family Court and the Federal Magistrates Court.

Concluding comments

The provisions of the current Judicial Complaints Bill do not create problems or intrude into doubtful areas where problems of judicial independence may arise, as the heads of jurisdiction are responsible for receiving complaints and dealing with them. For example, the Chief Justice of the Federal Court is responsible for ensuring ‘the effective, orderly and expeditious discharge of the business of the Court’.[40]

Generally the submissions received by the Senate Legal and Constitutional Affairs Committee supported the provisions of the Bill. The Law Council of Australia, with respect to the internal judicial complaints procedures notes:

The establishment of a structure and the provision of the ability to establish conduct committees seems to us to not disempower but empower the head of jurisdiction and to assist the head of jurisdiction in what they are now doing.[41]

Members, Senators and Parliamentary staff can obtain further information from the Parliamentary Library on (02) 6277 2442.

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