Dr WOODRUFF (Franklin – Leader of the Greens) – Honourable Speaker, I indicate that this is a bill which falls into Cassy O’Connor MLC, member for Hobart’s portfolio, so I am taking carriage of this through the House on her behalf. It is the intention of the Greens to support this bill, but we have a lot of questions and some amendments which we have flagged and circulated to members.
I start by appreciating the work of the Attorney-General’s staff. They have been extremely helpful and comprehensive in their briefings and answered a lot of questions and gone backwards and forwards, which is really important and welcome. I say what a difficult space this has been for members of parliament, particularly those who were involved in that process at the end of last year on the very last day of parliament. It is not a comfortable place for members of parliament to wade into.
It is an incredibly important principle of the Westminster system that we maintain a strong separation of powers between the judiciary and parliament. We must not go down the path that other countries have trodden down, some more recently than others, in interfering and reaching in to the decision-making and the independence of the judiciary. That is a pathway to doom and we have seen that from history. There are so many examples and current countries around the world. That is not where anyone in this Chamber wants to go; I am confident of that and I feel confident that I am surrounded by other members who take this matter very seriously.
We are here today because we have no mechanism that is considered adequate for dealing with members of the judiciary whose behaviour and conduct is below what is expected, and we especially have no mechanism for suspending a member of the judiciary while an investigation takes place and for removing a member of the judiciary if an investigation takes place, other than the incredibly antiquated process of parliament having to deliver a commission of inquiry process. To do that it is so heavy-handed and is so cumbersome a process and fraught with danger that we got to a stage last year where the government had intended to bring on legislation but then they just pulled it before we had even had a chance as members to debate it.
This is really important to set a framework in place. The Greens support establishing a process that is transparent where there must be a mechanism for holding judges to account. Who judges the judges? That is really what we are here deciding today. What are the appropriate safeguards for our democracy to have a mechanism to judge judges? It is very clear from the particular circumstances that are in play at the moment that we are motivated by the urgency of particular circumstances that are happening in relation to the behaviour of one judge, and potential instances of alleged serious behaviour that calls into question the capacity of that person to continue in that role, were that found to be the case.
There is no mechanism at the moment to do something about it. However, this has been on the record and has its antecedents much earlier than this particular instance. While the instance in question is a matter of public record, if it were found to be true it would take it through to the question of suspension. There is no mechanism to deal with lower‑order issues or issues that need to be investigated properly so that a matter of potential removal could be considered.
I am talking about the sorts of things that the Tasmanian Women Lawyers raised in their excellent submission and they, by the way, are very pleased that parliament is considering how to implement a judicial commission to address concerns about complaints and disciplinary issues. They said very strongly in their submission that:
Tasmania lacks a transparent mechanism to deal with errors of judgement, judicial bullying of legal practitioners, inappropriate remarks or conduct towards court users or litigants, or conduct in a judicial officer’s personal life that fundamentally calls into question their capacity to continue to serve in that role professionally.
They say:
Judicial bullying is a problem which Tasmanian Women Lawyers is particularly concerned with, as research across Australian institutions show that judicial bullying is a significant source of workplace stress and causes legal practitioners to leave the profession. Even the highest court in Australia is not immune from allegations of judicial bullying.
The lack of a complaints process in Tasmania to address judicial bullying means that unlike other jurisdictions, Tasmanian legal practitioners have no effective mechanism for having severe bullying behaviour investigated and addressed. This contributes to the widely recognised psychosocial stresses for legal practitioners and risks the loss of skilled and valued individuals from the legal profession.
That is a really terrible state of affairs. They are writing from the point of view of women lawyers and the instances they have raised in what I just read out could happen to a person of any gender, but they also go on to talk about matters which are particular to women lawyers and Ms White has read out the statement they gave in 2021.
They say sexual harassment and in particular gendered bullying, belittling, discrimination, and the marginalising of women in the profession has been occurring and is still occurring in Tasmania, and this is something we have to have a mechanism to deal with. Currently, the mechanism does not provide for confidentiality in people bringing forward complaints. It does not provide confidence to people who bring forward complaints that the person they are complaining to, who may have connections with the person they are complaining about, will make an assessment which is independent of their relationship with the person who they are alleging has behaved badly. This issue of the smallness, essentially, of the profession and the enormous disparity in power between the most senior judicial officers, the chief magistrate, the chief justice and everybody else in the profession, is very difficult, and it is something that has to be dealt with properly.
I understand that the Attorney‑General has dealt with many of the issues that have been raised in the submissions that were provided in July. We will go through in committee and unpack these concerns, and make sure that they have all been dealt with properly. We have a number of questions about how that has happened, and that is a process that we want to go through. The Tasmanian Women Lawyers have also said that it is very important that we have to explicitly make our purpose clear for the guidelines for the work of the proposed judicial council. There has to be a clear process for guiding complaints so that the public perception of judicial officers is that they are not immune from consequences, no matter the power that a person may wield in the courtrooms, for errors of judgement or for things that fall short of public expectations of judicial behaviour.
Some of the public expectations of judicial behavior are about language that is used in the courtroom. It is about the behaviour of a judicial officer to other members of the legal profession and in their duties. These are very important matters that provide information about the capacity of the judicial officer to do their work with objectivity, independence and the ability to be impartial to the types of person and circumstances, and to apply the law when they are considering the matters that come before them without the bias of their own personal views or without any bias that could affect the outcome.
The public has to have real confidence in it, and it will be a better thing for Tasmania’s justice system to have this mechanism in place – to have a framework so that complaints can be made and heard. That is why it is so important to have this mechanism. At the moment we have been focusing on bringing in this legislation for a very serious matter that might still be in train in the courts that potentially could go to removal of a judge, but there are so many other things that this legislation would and should seek to deal with.
The other mechanism that we need to have is something that can deal with the failures of performance of a judge or magistrate, that is, something that can deal with the capacity of a judge or magistrate to hear and to provide judgments on cases, specifically in relation to matters of misconduct, bullying, inappropriate private life conduct and sexual harassment. These are things where there has been unquestionably a disinclination amongst a male-dominated profession to have these matters dealt with in a way that other workplaces would deal with those sorts of allegations of misconduct and misbehaviour. That is why we have to have this mechanism in place.
We have four amendments. We have had a range of amendments proposed. We have been backwards and forwards, and we have four amendments to discuss today. There are several other matters that it is likely, depending on the outcome of where the House lands, Ms O’Connor will take up in the Legislative Council. I will certainly flag those things in debate.
I thank the people, in addition to the department staff, who have given us their time and provided us with briefings: Duncan Kerr, former Federal Court judge; and Chris Gunson SC, have both been very generous and comprehensive in providing their thoughts on the bill, and that is very welcome. The people who made the submissions are very important in the views they provided, many of which have been attended to by the Attorney‑General, some of which are outstanding or we have questions about.
It is important to say that the question of the privacy of hearings is a complicated matter. It is a very fine point whether hearings should be public or private. The Tasmanian Women Lawyers summed it up nicely, saying having hearings in private allows for anonymous complaints, which is good, but it also allows for less transparent accountability processes, which is not good. They recommend that an appropriate balance to be struck to ensure that complainants are confident that their concerns are being addressed in a rigorous analysis and in a manner appropriate to the scale of the complaint and any privacy concerns involved.
They recommended that the bill incorporates a model where there is a register similar to that kept by the LBPT – I am not sure what that stands for – and accessible via their website, or to that used in New South Wales or Victoria. Those processes recalled all findings of substantiated complaints, with council to have the discretion as to whether to publish such material with pseudonyms or other protections for complainants, witnesses or the judicial officer concerned. I would appreciate the Attorney-General’s comments on the matter of –
Mr Barnett – It is the Legal Profession Board of Tasmania.
Dr WOODRUFF – That is what it is, thank you. I would appreciate the Attorney-General’s comments on the recommendation of having a similar mechanism.
The other matter that we want to raise in the bill is in relation to the keeping of records of a report from the Judicial Commission that is tabled in parliament. Currently as it stands in the bill, the report is to be shredded. We have a problem with that. Parts of the report can be held confidential and not made available. The report is to be tabled in parliament by the Attorney-General, and part of the report may be removed for any confidential information, and then after the process the report is to be shredded.
The concern we have with that is for history. This is a document of parliament. It is different to what is happening in government. There is a process for Cabinet‑in‑confidence papers which are tabled with the archive, and I understand are made available for, I do not know how long – 20 years or 25 years. I am not sure what the timeframe is for Cabinet‑in‑confidence papers. There is a mechanism so that history will know the decisions that have been taken by members of parliament in their role as Cabinet ministers. They are working for the public interest and it should be there for the historical record. By the same argument, we would like to see a process where the information can be retained for historical purposes and made available at a later date. That is a novel and probably slightly different process to the process of archiving Cabinet-in-confidence papers and decisions. It is something Ms O’Connor will probably deal with in the Legislative Council, but I would like to hear the Premier’s thoughts on this. Obviously, it is about maintaining confidentiality at the time, but it is about keeping truth to the people of Tasmania for historical purposes so that information can be made available, as it is for everything else.
I will not go into any more detail about this now, except to say I have heard Mr O’Byrne’s thoughts, which he will discuss himself, about having diversity on the commission panel. The Greens support diversity on the commission panel; that is manifestly a good thing. I understand the Attorney-General is introducing some amendments around the guidelines and some of the issues that were raised by Tasmanian Women Lawyers. That is also welcome. I think Mrs Beswick initiated that process.
The Greens have quite a lot of stuff to say but we support this bill and are keen to work towards getting it passed.
