Ms O’CONNOR (Hobart) – We are dealing with a bill today which is of a most serious nature and consequence. While we are talking about how to guarantee the separation of powers, we need to tread most carefully, and I take on board and heed the informed concerns that have been expressed by the honourable member for Nelson and the honourable member for Murchison.
We have a job here to do. We need to uphold the independence of, and public confidence in, the judiciary. I know that the reason we are debating this bill at this time is because there is a certain robed elephant in the room but we need to try to look at these two matters separately, even though they are intimately connected. We have a situation where a certain judge has been found guilty of most serious offences of emotional abuse or intimidation under the Family Violence Act and common assault under the Police Offences Act. Then we have a bill before us.
I understand there is a level of concern that we are being rushed here and particular concerns around some of the powers, for example, that are vested in the Attorney-General and the likely need for parliament to have a disallowable say, for example, in relation to one of the amendments that has been put forward by the honourable member for Nelson in terms of the Attorney-General’s proposed appointment to the council, but we should try to separate these two issues and examine this bill on its merits.
I am extremely thankful for all the information that has been provided to us through the briefings. I am thankful to the Department of Justice and the staff from the minister’s office for being responsive to questions that have been asked. The information that has been provided to us by Professor Gabrielle Appleby from the Gilbert and Tobin Centre of Public Law, Anja Hilkemeijer from the University of Tasmania, all of these thoughts, opinions and informed views are what we need to take into consideration in determining our response to this legislation.
The Greens supported this bill in the House of Assembly and made a number of amendments that we believed would improve its workability. I have also, like other honourable members, personally consulted people, some with very considerable expertise in this area, a former justice, senior legal professionals locally. While I do not believe the legislation is perfect, and we need to try to make sure it is as close to that as it can be, I have been reassured at least in part by my conversations with very learned people who took the time to examine this bill over a number of days and provide some insights, feedback and suggestions for potential improvement.
In terms of the fundamentals of the structure that we are being provided with here in this bill, there was a level of comfort about that amongst the very learned external people who I did consult.
I am certainly open to amendments. I am open to moves to allow for further consideration of the bill over a period of time and I slightly resent us being put in this situation where we are dealing with a bill of such consequence through the lens of a judge who has been convicted of a crime. But the legislation itself is what we are dealing with here today.
This bill is modelled at least in part, not just on the ACT legislation. A little further in my Constitution there is a Commonwealth act that allows for the removal of a judge in matters where there has been serious misconduct or incapacity and many of the features of that Commonwealth bill are not dissimilar from the legislation that we are debating today.
This bill establishes a structure where there is a standing council established. It has the chief justice of the Supreme Court on it, the chief magistrate, a person appointed by the attorney-general on the recommendation of the Law Society and the Bar Association, and another person appointed by the attorney-general and, obviously, that appointment is the one that has raised some concerns amongst learned legal professionals, and that is why we are being presented with an amendment by the honourable member for Nelson that would allow for that appointment, the single appointment to the council out of the four that is at the attorney-general’s sole discretion to be a disallowable appointment by the parliament and I think that is reasonable.
While that is not a provision, should it be amended, that is reflected in the ACT legislation, it is not unreasonable that parliament should have a determinative say in at least one appointment.
I mean we have got a determinative say if we pass this legislation, but in the attorney-general’s appointment to a council. And then it would have been really helpful, I think, to honourable members to have seen a kind of a flow chart of the way it works from the making of a complaint to the council, how a council deals with that complaint, what happens when it is dismissed or what happens when there is a slightly lesser finding and it is referred to a presiding officer, and then the process for establishing a commission and the investigation and processes that might ultimately lead to the complaint being dismissed or a recommendation being made to the parliament. It would have been very helpful to see visually, because we are visual creatures, how it all worked in flow terms.
But, fundamentally, there is nothing unreasonable about the structures and the processes which have been put in place. Now obviously, like I think all other honourable members in this place, I do not have a law degree and always try to be informed by people with expertise.
The submissions that have been made to us by Professor Appleby and Anja Hilkemeijer should give us pause for thought, particularly given Professor Appleby’s experience through the Centre for Public Law. It is very clear that this advice has been provided to us out of a strong desire to see us get this right and establish a fair, efficient and just process that rigorously maintains the separation of powers and gives parliament its rightful authority in those extremely.
Sitting suspended from 1.00 p.m. to 2.30 p.m.
Resumed from above (2:50 p.m.).
Ms O’CONNOR (Hobart) – Mr President, before the lunch bell rang, I was talking in scant detail about some of the powers of parliament which we must use extremely judiciously – pardon the pun – but also to recognise that ultimately there is a power vested in this parliament.
The bill itself – while we acknowledge it is not perfect – arguably does provide procedural fairness to any judicial officer who may be subject to a complaint that makes its way through the council to the commission. For any matter that comes before the council or any commission, the commission and the council will measure the behaviour of a judicial officer who is the subject of a complaint against accepted standards of judicial behaviour as outlined in common law and in key reference documents such as the Guide to Judicial Conduct issued by the Australasian Institute of Judicial Administration and updated on a semi‑regular basis.
The guiding principles for the conduct of judicial officers are these:
The principles applicable to judicial conduct have three main objectives:
- To uphold public confidence in the administration of justice;
- To enhance public respect for the institution of the judiciary; and
- To protect the reputation of individual judicial officers and of the judiciary.
Any course of conduct that has the potential to put these objectives at risk must therefore be very carefully considered and, as far as possible, avoided.
There are three basic principles against which judicial conduct should be tested to ensure compliance with the stated objectives. These are:
- Impartiality;
- Judicial independence; and, [critically]
- Integrity and personal behaviour.
Then the guide goes on to talk about conduct generally and integrity and it is, as you would expect, a very thoughtfully and carefully worded guide to conduct that acknowledges that judges are people too. It says:
Judges are entitled to exercise the rights and freedoms available to all citizens. It is in the public interest that judges participate in the life and affairs of the community, so that they remain in touch with the community.
On the other hand, appointment to judicial office brings with it some limitations on private and public conduct. By accepting an appointment, a judge agrees to accept those limitations.
These two general considerations have to be borne in mind in considering the duty of a judge to uphold the status and reputation of the judiciary, and to avoid conduct that diminishes public confidence in, and respect for, the judicial office.
Impartiality: A judge should try to ensure that his or her conduct, in and out of court, in public and in private, maintains and enhances public confidence in the judge’s impartiality and that of the judiciary.
Mr President, back to that robed elephant in the room. I am not talking about you, Mr President, I am not.
Mr PRESIDENT – Very wise.
Ms O’CONNOR – Obviously, there are issues there in relation to adherence to the Guide to Judicial Conduct.
Even though I made the point at the beginning of my contribution, that I feel we need to try to view the situation facing a certain judge and this bill as separately as we can, this legislation, as we all know, will, should it pass, stand in place for a very long time. Probably not as long as the 1857 act, but it will. I am trying hard while it is clear that the lens through which this legislation has been developed has been a kind of a sense of panic on the government’s part, the bill itself will stand beyond whatever happens to a certain justice. In that case, as we know, a verdict has been delivered through a procedurally fair process.
A sitting judge of the Supreme Court has been found guilty of serious offences of emotional abuse or intimidation under the Family Violence Act and common assault under the Police Offences Act. It is a most serious verdict of guilty for any person to receive, let alone a sitting judge of Tasmania’s Supreme Court.
We understand that sentencing will take place on 14 November. The honourable member for Nelson, in her excellent and thorough contribution, read into the Hansard the undertakings, the document that was presented to members of parliament late last year. I am not sure I have exactly the same interpretation of the undertakings as the honourable member for Nelson. It says:
I, (a certain judge of the Supreme Court of Tasmania) undertake to the members of the House of Assembly and the Legislative Council of the parliament of Tasmania that, until the resolution of court proceedings against me on complaint 11690/23 and the related application for a family violence order 150507/23, I will adhere to the extant direction on its current terms that I not sit in respect of any matter, whether in the court or in chambers, or seek to exercise any of the powers of the judge of the Supreme Court of Tasmania, except to the extent that the Honourable Chief Justice of the said court might request.
The resolution of the court proceedings presumably will be upon sentencing on 14 November, and there is an open question as to what happens after that. Most reasonable people, in the circumstance of a certain judge, at the point where we are now, might have had the grace to resign, but we are not there, but it is an open question about this undertaking because it is not a suspension. It is not even really a practical suspension. It is a promise made by a justice who has now been found guilty of serious offences and, in my view, the justice’s position became untenable once he was charged, given the gravity of the offences. Certainly, however, the justice’s position becomes completely and wholly untenable from the point of sentencing.
As I said before, a reasonable person in that situation might take the opportunity to resign but we are not there yet. It does point to a couple of things which are still undealt with by government, and one of them is the fact that the Chief Justice of the Supreme Court of Tasmania has extraordinarily limited powers, some capacity to case manage but, even in the context of a certain justice and charges that were made, the Chief Justice of the Supreme Court was restricted in his capacity to deal with that. He could not, as I understand it, ask that certain justice to step down, go away. He is really limited, and there is a clear need for a broader court reform process that modernises the Supreme Court and potentially the Magistrates Court and certainly should give the Chief Justice of the Supreme Court more organisational and directive powers. At the moment, as I understand it, because of the situation that the court is in, a court that should have seven justices sitting on it is down to four. Maybe the Leader of Government Business could confirm that or otherwise.
But the court itself is in a very difficult position. We have already got backlogs. I have seen court lists for some judges where people are waiting for cases that were heard in 2018. So, six years ago, cases were heard before the Supreme Court and there is still not a decision on those cases. Some of that must come down to the resourcing of the court, and some of it must also come down to the restrictions on the Chief Justice to directly case manage the work of judicial officers on the court.
But it is just not good enough to have people waiting six or more years for a verdict. As we all know, it is a cliche but it is true, justice delayed is justice denied. There are bigger issues here with the court that the government and the Attorney-General really do need to take on.
I note the motion to suspend that was tabled by the honourable member for Murchison. It did come as a bit of a surprise to me to have it land on the Table like that, given the seriousness of the matter we are contemplating.
I am currently uncertain as to why we might move to suspend a certain justice following sentencing rather than potentially do what, on the advice that we have, is possible under the 1857 act and take steps ourselves as a parliament.
I am not certain, and I am not sure the council is certain, what the honourable member for Murchison’s intent is in terms of that motion. I am sure that it would not come on before sentencing, but it provides this council with an opportunity to take some clear action in response to a justice whose position is untenable now and will be more so following sentencing on 14 November.
I just want to pause for a moment here. I feel uncomfortable not naming a certain justice, and I note that members received some advice that was provided to the Attorney-General from the Director of Public Prosecutions which indicated we should be careful, which I think we always are, about how we refer to this certain justice prior to his sentencing because any debate that happens within a parliament may have an impact on sentencing.
With the greatest of respect to the DPP, I am not buying it. I do not buy that because there has been so much on the public record stretching back before the laying of charges, back to an incident at the Grand Poobah, not appropriate behaviour for a judge there. But it is discomforting to feel like I am being gagged about just laying some of the basic facts on the record and being able to identify an individual who people are talking about in the community and who the media have covered extensively as a result of his conduct going back some two years.
Nonetheless, I will broadly comply, but I think we should all be careful in here when we are asked not to do or say things and test the information that is provided to us to make sure we are not being unduly restricted from an open and transparent conversation about the matters at hand. But back to the member for Murchison’s motion to suspend, so we do have an opportunity here for parliament to respond, for this council to respond to this motion in the first instance after sentencing and that is on 19 November in private members’ time in this place.
So, we have got a decision to make. I think both Houses of parliament have a decision to make going forward about whether or not we allow, should this act pass, a commissions process to follow its course – and that of course could take some time – or whether we exercise some of the powers or the power that is detailed in the Supreme Court (Judges’ Independence) Act 1857, which is certainly – I think it is – the shortest act I have ever seen.
Ms Forrest – Probably the oldest as well.
Ms O’CONNOR – It was one year after our establishment as a state, was it not? Or not a state, it was one year after parliament was established, I think. 1856 was the – anyway, so section 1, the active clause, of this act:
It shall not be lawful for the Governor, either with or without the advice of the Executive Council, to suspend, or for the Governor to amove, any judge of the Supreme Court unless upon the address of both Houses of Parliament.
It is not dissimilar from section 72 of the Australian Constitution, which says:
The Justices of the High Court and of the other courts created by the Parliament:
(i) shall be appointed by the Governor-General in Council;
And a very mirrored clause:
(ii) 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;
So, we have never, as other honourable members have made clear, we have never exercised the 1857 act but, clearly, it does provide a capacity to take some direct action. We have been advised that the power to suspend a judge, and this is in briefings, does not derive from section 1 of the Supreme Court (Judges’ Independence) Act. It is found in the royal prerogative, that is in the original, now revoked, letter patent.
It was made clear Her Majesty held a power to suspend a judge through her governor or governor-general, with the passage of the Australia Act 1986, the letters patent were revoked and the act provided that all powers and functions of Her or His Majesty in respect of a state exercisable only by the governor of the state.
Now the other relevant statute, just for comparison, is the Commonwealth act, the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012. It is the foundational process for section 72 of the Constitution to be triggered, because the process provides a report to the parliament and then the parliament decides what it will do with that report.
But it has some really interesting provisions in it. It is specifically an act for parliamentary commissions to investigate allegations of judicial misbehaviour or incapacity and for related purposes. It has an appointment process for membership of the commission that is much more political and directly interventionist than the legislation we debate today.
Clause 14. Membership
A Commission consists of three members appointed on the nomination of the Attorney-General. Before nominating a member, the Prime Minister must consult with the Leader of the Opposition in the House of Representatives.
Well, that is obviously a weak process – a stitch-up between the two major parties again, given that the Commonwealth parliament, as this parliament does, has an ultimate constitutional role here for the process of establishing a commission to be stitched up between the prime minister and the leader of the opposition in the first instance is not –
Ms Forrest – Depends how you define consultation. If you look at what happens in caretaker mode, it is really telling you what they are going to do.
Ms O’CONNOR – Yes, it is telling you what they are going to do.
Ms Forrest – Told you.
Ms O’CONNOR – Yes, but then clause 14 provides a parliamentary process, so a member is appointed by force of this subsection if each House of the Parliament passes in the same session a resolution to appoint the member. This legislation also explicitly provides for natural justice principles. Clause 20 –
A Commission must act in accordance with the rules of natural justice.
That is something that we could have included in this bill, although it is implicit that those natural justice principles would apply. That is it, but again we see a legislative structure, it has not have the council as the initial complaints triage body, but the structure of the commission, in part, the processes, are not dissimilar from the legislation that we are debating today.
The Greens are still considering our position, not on this legislation; we support this legislation. On how best to respond to a certain judge, there are numerous moving parts here: the member for Murchison’s suspension motion, there is the option of a motion to remove coming before either House of the parliament.
We have written to the Attorney-General following the guilty verdict and said at the end that we are cognisant of the significance of the separation of powers and particularly the independence of the judiciary, which is largely given effect by the 1857 act. We also acknowledge the occasion on which the powers invested by parliament under the 1857 act is a step not to be taken lightly and broadly acknowledge the very few occasions on which judges have been removed by parliaments throughout the Commonwealth.
With the significance of the steps that we propose and to engage on with you, we consider that the very detailed findings by temporary magistrate Susan Wakeling are sufficient for parliament to consider whether a certain justice, Justice Geason, should remain a judge of the Supreme Court and, if considered appropriate by parliament, to pass the motions required by the 1857 act to effect the removal of Justice Geason as a judge of the Supreme Court.
There is a good paper or piece of advice from Gabrielle Appleby in relation to pulling the 1857 trigger. Professor Appleby notes that the Supreme Court (Judges’ Independence) Act 1857 stipulates no reason for removal. She points to some legal uncertainty which she feels is there as to whether judicial tenure in the Tasmanian Supreme Court is held at pleasure or during good behaviour and she says:
The constitutionally responsible and prudent course for the Houses would be to consider whether there are sufficient grounds to warrant removal, which would amount to misbehaviour of such a degree in nature that the public confidence in the judiciary would be undermined should the judge remain in office. That is, that he is not a fit and proper person to continue to hold office as a Supreme Court judge.
Her paper goes on to say:
The Houses can consider behaviour and actions beyond that which were relevant to determining whether a criminal offence was committed. We can apply an appropriate standard of proof. We are not bound to apply the criminal standard. An appropriate standard would nonetheless be high. The Houses can inform themselves as they see fit. Parliament is not bound by the rules of evidence or procedural fairness. However, again, it would be advisable for the Houses to adopt a fair process ensuring procedural protections for the judicial officer, given the nature of the allegations and potential seriousness of the consequences.
Now, this is before we had a guilty verdict.
Independent of the question of the judicial determinant, termination of guilt or innocence, the Houses have the constitutional power to determine whether Justice Geason has engaged in conduct that warrants removal from judicial office. The parliament can choose any number of paths of course, but this paper details two. One is for, in the event of charges and we are past there, for the parliament to establish a committee inquiry process and the other is in the event of a guilty verdict, for parliament to move more swiftly.
At the closing of this paper, Professor Appleby says if there is a guilty verdict, the Houses may choose not to conduct a further investigation if there is a guilty verdict on the basis this provides sufficient factual information for them to determine whether removal is warranted or not. Equally, the Houses may choose to conduct a further investigation, even if there is a guilty verdict, on the basis that there might be further factual circumstances relevant to the question of removal that are not the subject of criminal proceedings.
We have got some decisions to make as a council beyond debate on this legislation, and I look forward to some of those conversations around that decision. We have not had a response yet from the Attorney-General to our letter offering to work with the government to ensure speedy action is taken. I look forward to receiving that response. I will just say in terms of potential paths forward, parliament has an authority and a power here, but we are looking at a commission’s process, if we can just not think about a certain judge – but okay let us not pretend – there is a commission’s process where you have got learned legal professionals, members of a commission who have been carefully selected beyond the reach of politics, who could, obviously undertake a very procedurally fair and naturally just investigation and make a recommendation to the parliament. There are two ways of looking at this, I am not sure how this would go down in the ‘pub test’. I suspect the pub test would come down on the side of get rid of him quickly, but I have not tested the pub test.
We are quite comfortable supporting this bill. I think it is workable and I am reassured by the briefings we have had, but also my opportunity to talk to people who really have experience on the bench or working to the bench as a barrister. I am interested in hearing the arguments for the amendments, particularly those around allowing for parliament to make a final decision on appointments to this process. I thank the member for Nelson for the work that you put in bringing forward these amendments, and also Professor Appleby, particularly for helping us to see things clearly a different way.
With that, I can indicate our support fundamentally for the bill.
