Tasha Naige

University

Flinders University

Place (Rank)

4th Place

Year

2006

Introduction

Currently in Australia there are no provisions for evaluating allegations of misbehaviour or incapacity by Australian federal judges. The Australian judiciary has come under scrutiny of recent times and has been told it needs to adapt to accommodate a higher standard of judicial accountability and transparency in disciplinary procedures. However, reforms in the area of judicial accountability naturally raise issues of judicial independence. One suggestion that has been put forward is to implement an Australian judicial commission similar to the New South Wales system to receive and handle complaints. This paper will examine the New South Wales model and discuss whether such a system is compatible with the Commonwealth Constitution. It shall be argued that there are constitutional issues arising from establishing such a system, although the extent of this really depends on how far one reads into the Constitution. Nonetheless, it seems unlikely that such a model could work at the federal level.

Essay

A New South Wales-type judicial commission at the federal level? Constitutional Limits

 

Currently in Australia there are no provisions for evaluating allegations of misbehaviour or incapacity by Australian federal judges. The Australian judiciary has come under scrutiny of recent times and has been told it needs to adapt to accommodate a higher standard of judicial accountability and transparency in disciplinary procedures. However, reforms in the area of judicial accountability naturally raise issues of judicial independence. One suggestion that has been put forward is to implement an Australian judicial commission similar to the New South Wales system to receive and handle complaints. This paper will examine the New South Wales model and discuss whether such a system is compatible with the Commonwealth Constitution. It shall be argued that there are constitutional issues arising from establishing such a system, although the extent of this really depends on how far one reads into the Constitution. Nonetheless, it seems unlikely that such a model could work at the federal level.

 

The Relevant Constitution Provisions

Judicial tenure is protected under s 72(ii) of the Constitution which ensures that aside from reaching the retirement age, judges can only be removed following a parliamentary address by both houses finding proved misbehaviour or incapacity. Judicial tenure is considered the primary safeguard of judicial independence, and thus judicial impartiality.[1]

 

Section 72(ii) applies to all federal courts.[2] ‘Misbehaviour’ is understood to have a wide meaning and encompasses judicial and criminal behaviour, as well as any other conduct that Parliament might ultimately consider would render a judge unfit for office.[3] This could include conduct that brings into question the suitability or authority of a judge;[4] conduct that is morally wrong;[5] or behaviour that destroys public confidence in the judge to perform his or her official duties.[6] Incapacity includes mental and physical inability to perform judicial duties.[7]

 

It is obvious that there may be some instances of misbehaviour that would not warrant removal. As such, allegations of misbehaviour are able to be divided into two categories: allegations that could warrant removal and allegations that do not – but how to distinguish between the two? The purpose of this essay is to ask whether a New South Wales-type judicial commission could be useful in this respect.

 

The Current System

The current system in place for evaluating allegations of misbehaviour of federal judges is largely an informal one with the Chief Justice, Judge or Magistrate, and the Attorney-General evaluating complaints for themselves and assessing what action, if any, is appropriate.[8] As Justice Thomas writes, ‘The apparently low level of public discontent suggests that this informal system has functioned tolerably well throughout our judicial history.’[9]

 

This begs the question, is there really a need for reform? It stands as a testament to the high quality of the Australian judiciary that since federation there has only been one case of an inquiry being initiated regarding a federal judge, but this was later abandoned.[10] In fact, in the context of both state and federal judges there has only been one instance post-federation of a judge being dismissed on address by Parliament.[11] However, it should be observed that it is not unusual for a judge to resign once questions as to their behaviour or capacity have come under investigation.[12] As a result, there is a tendency to regard the lack of high profile cases as a reason against the need for formal mechanisms.[13]

 

But the merits of this reasoning can be questioned. It could be said that it is increasingly a sign of modernity amongst common law countries to have formalised mechanisms for evaluating allegations of judicial misbehaviour.[14] Furthermore, it should be considered that over the years, there have been a number of scandals regarding judges’ behaviour that has been reported by the media to the public, whether substantiated or not. Along with the 1980s scandals concerning Justice Murphy and Justice Vasta, there has been Senator Heffernan’s allegations in 2002 against Justice Kirby which were later retracted; the jailing of a Queensland Chief Magistrate; a number of instances of judicial officers failing to or allegedly failing to lodge tax returns; and a New South Wales judge who allegedly fell asleep during a number of trials, including a rape trial.[15] Recently, a Queensland Magistrate was caught having plagiarised a colleague’s judgment.[16] Thus, it is possible to see how perhaps to the public, there does seem to be enough mischief occurring on the bench to warrant the introduction of a formal commission to evaluate allegations of judicial misconduct and incapacity.

 

As such, it is argued that some sort of machinery should be formulated to evaluate allegations. One obvious reform is to implement an Australian judicial commission, modelled on the New South Wales Judicial Commission, established in 1986 by the Judicial Officers Act 1986 (NSW).

 

New South Wales model

The New South Wales Judicial Commission is a system established to examine complaints against judges and other judicial officers.[17] It is made up of ten members, including the various Heads of Jurisdiction and four government appointees.[18] It may receive a complaint from any person about matters concerning ‘the ability or behaviour of a judicial officer’.[19] Once a complaint has been made a preliminary inquiry is conducted by the Commission into the matter, and as far as possible, in private.[20] At the conclusion of the inquiry, it is then determined whether the complaint should be summarily dismissed,[21] or whether it should be classified as ‘minor’ or ‘serious’.[22] The term ‘serious’ is defined as a complaint which if established, could, in the opinion of the Commission, justify parliamentary consideration of the removal of the judicial officer from office.[23] All other complaints that are not summarily dismissed or classified as serious are classified ‘minor’.[24]

 

All serious complaints, and some minor complaints not referred to the Heads of Jurisdiction, are referred to the Conduct Division of the Commission.[25] The Conduct Division consists of three persons appointed by the Commission.[26] Members must be judicial officers, and need not be members of the Commission, although one may be a retired judicial officer.[27] The Conduct Division conducts further investigation of the matter, as far as practicable in private, and may convene a hearing.[28]

 

Once a complaint is dealt with, the Conduct Division prepares a report of its findings to the Commission in the case of minor claims, and to the Governor in the case of serious claims.[29] The Conduct Division can dismiss a complaint if it decides the claim was not substantiated.[30] In regards to a minor matter that has been wholly or partly substantiated, it can decide to take no action, or simply inform the judicial officer.[31] If a serious matter has been wholly or partly substantiated, the Conduct Division can ‘form the opinion’ that the matter could justify parliamentary consideration of removal,[32] in which case the Attorney-General must lay the report before both Houses of Parliament.[33] In addition, the Conduct Division may request that the judicial officer in question undergo a medical examination,[34] or refer the complaint to an appropriate body or person, be it a minor or serious matter.[35] As noted by Potas, ‘The key point to note is that the Commission’s powers are essentially investigatory and it has no power under the legislation to discipline a judicial officer’.[36]

 

Constitutional Limits on implementing a New South Wales-type Commission

The main argument against such a model being implemented at the federal level is that s 72(ii) is the only provision in the Constitution relating to the discipline of federal judges, and is thus the only authorised means of disciplining federal judges. A judicial commission would operate outside of this rule, and therefore would be unconstitutional on the grounds that it would infringe the principles of judicial independence reflected by Chapter III of the Constitution.

 

This follows a strict interpretation of the Constitution and places a lot of importance on judicial independence – but is this reading too far into the Constitution? It should of course be remembered that the purpose of judicial independence is not to protect judges, but to protect the public by ensuring that a case will be decided with impartiality.[37] If a judicial commission was established, the ultimate power of removing judges would still, as required by the Constitution, remain with Parliament. The commission would have no power to sanction judicial officers – its core function would be to evaluate allegations and either summarily dismiss them, or classify them as minor or serious.

 

Handsley has asked whether the danger of executive interference in the independence of the judiciary is as great now as it was when the principle was first formulated. [38] She argues that in contrast to the end of the 17th century, the public is more likely to be able to identify any ‘witch-hunt’ and debate it; parliament now has a greater capacity to stop abuses of executive power; and the fact that executive power rests in a group rather than in an individual is likely to make it harder for the executive to engage in capricious or arbitrary conduct.[39]

 

These arguments are supported by the observation that judicial independence in New South Wales does not appear to have been threatened by the established commission.[40] Thus, there is a chance that, as in New South Wales, if such a commission were to be implemented at the federal level there would be an initial furore about the legislation, but that would eventually abate.[41]

 

However, one must also consider the special position of the High Court, as the highest court in Australia’s judicial system. The Law Council has said it is ‘imperative that the conduct of a High Court judge should remain firmly for sole consideration and scrutinisation by the two Houses of Parliament.’[42] A judicial commission runs the risk of the High Court having to consider a justiciable complaint against one of their own, arising from a complaint made about a High Court justice to such a federal judicial commission.[43] Not only that, but there is also the potential for interference to occur with the appellate process,[44] which is made all the more serious in light of the High Court’s apex role in the Australian judicial system.

 

If High Court justices were to be excluded, it creates the inconsistency of having a formal mechanism for federal judges with the glaring exception of the High Court. This could undermine public confidence in such a process, which in turn could risk undermining public confidence in the judiciary.

 

Conclusion

The limits on interference with judicial independence found in the Constitution would make it hard for a judicial commission based on the New South Wales model to be established at the federal level. Although there are calls for greater accountability these days, a judicial commission based on the New South Wales model is not the only option. In fact, the Federal Government is likely to introduce a protocol for dealing with complaints, rather than implement a standing commission.[45] There is a chance that, as was the case in New South Wales, if such a commission were to be implemented at the federal level there would be an initial furore about the legislation, but that would eventually abate.[46] On the other hand, the Chapter III requirements and the special position of the High Court as the apex of Australia’s judicial system might make objections to legislation at the federal level all the more stronger. As such, a judicial commission based on the New South Wales model should not be implemented at the federal level for evaluating allegations of misconduct or incapacity of federal judges.

 

Word count: 2,457.

 

Bibliography

  • Australian Law Reform Commission, Managing Justice – A Review of the Federal Civil Justice System, Report No. 89 (2000).
  • Blackshield, Anthony R., ‘The Appointment and Removal of Federal Judges’ in Brian Opeskin, and Fiona Wheeler (eds.) The Australian Federal Judicial System (Carlton South, Victoria: Melbourne University Press, 2000).
  • Campbell, Enid and Lee, Hoong Phun, The Australian Judiciary (Cambridge: Cambridge University Press, 2002).
  • Drummond, Justice Douglas, ‘Do Courts Need a Complaints Department?’ (2001) 21 Australian Bar Review 11.
  • Handsley, Elizabeth, 'Issues Paper on Judicial Accountability’ (2001) 10 Journal of Judicial Administration 180.
  • Hicks, Ron, ‘Scrutiny of judges' standards’ The Australian (Sydney), 25 May 2006, 5.
  • Kirby, Justice Michael, ‘Judicial Independence in Australia Reaches A Moment of Truth’ (1990) 13 University of New South Wales Law Journal 187.
  • Lane, P.H. ‘Constitutional Aspects of Judicial Independence’ in Helen Cunningham (ed.) Fragile Bastion: Judicial Independence in the Nineties and Beyond (Sydney: Judicial Commission of New South Wales, 1997), 53.
  • Lush, Sir George, Blackburn, Sir Richard, and Wells, Andrew, ‘Parliamentary Commission of Inquiry re Justice Murphy’ (1986) 2 Australian Bar Review 203.
  • Merritt, Chris, ‘Inquiry could end in dozing judge's sacking’ The Australian (Sydney), 1 June 2005, 5.
  • Merritt, Chris, ‘Copy-cat magistrate caught again’ The Australian (Sydney), 31 March 2006, 25
  • Potas, Ivan, ‘The Judicial Commission of NSW: Treading a Fine Line Between Judicial Independence and Judicial Accountability’ in Chris Corns (ed.) ‘Reshaping the Judiciary’ (2000) 18 The Law in Context 102.
  • Quick, Sir John and Garran, Sir Robert, The Annotated Constitution of the Australian Commonwealth (Sydney: Angus and Robertson, 1901).
  • Sallmann, Peter, ‘Judicial Conduct: Still A Live Issue?’ (Colloquium Paper presented at the Judicial Conference of Australia, Sunshine Coast, 3 September 2005) <www.jca.asn.au/pubs/SallmannPaper.doc> at 14 May 2006.
  • Thomas, Justice James B., Judicial Ethics in Australia (2nd ed., Sydney: Law Book Company, 1997).

 

 

 

[1] E. Handsley, ‘Issues Paper on Judicial Accountability’ (2001) 10 Journal of Judicial Administration 180, 183.

[2] P. H. Lane, ‘Constitutional Aspects of Judicial Independence’ in H. Cunningham (ed.) Fragile Bastion: Judicial Independence in the Nineties and Beyond (Sydney: Judicial Commission of New South Wales, 1997), 53, 64.

[3] Ibid, 62-63.

[4] G. Lush, R. Blackburn and A. Wells, ‘Parliamentary Commission of Inquiry re Justice Murphy’ (1986) 2 Australian Bar Review 203, 210.

[5] Ibid, 221.

[6] Ibid, 230.

[7] J. Quick and R. Garran, The Annotated Constitution of the Australian Commonwealth (Sydney: Angus and Robertson, 1901), 732.

[8] E. Campbell and H. P. Lee, The Australian Judiciary (Cambridge: Cambridge University Press, 2002), 118, citing J. Waugh, ‘A question of Capacity: The Case of Justice Bruce’ (1998) 9 Public Law Review 223.

[9] J. B. Thomas, Judicial Ethics in Australia (2nd ed., Sydney: Law Book Company, 1997), 256.

[10] See further A. R. Blackshield, ‘The Appointment and Removal of Federal Judges’ in B. Opeskin, and F. Wheeler (eds.) The Australian Federal Judicial System (Carlton South, Victoria: Melbourne University Press, 2000).

[11] Justice Vasta. See further, M. Kirby, ‘Judicial Independence in Australia Reaches A Moment of Truth’ (1990) 13 University of New South Wales Law Journal 187, 200-202.

[12] For example, Justice Bruce of the New South Wales Supreme Court. See further, I. Potas, ‘The Judicial Commission of NSW: Treading a Fine Line Between Judicial Independence and Judicial Accountability’ in C. Corns (ed.) ‘Reshaping the Judiciary’ (2000) 18 The Law in Context 102, 114-116.

[13] D. Drummond, ‘Do Courts Need a Complaints Department?’ (2001) 21 Australian Bar Review 11.

[14] P. Sallmann, ‘Judicial Conduct: Still A Live Issue?’ (Colloquium Paper presented at the Judicial Conference of Australia, Sunshine Coast, 3 September 2005) <www.jca.asn.au/pubs/SallmannPaper.doc> at 14 May 2006, 9-10.

[15] Ibid. See further, C. Merritt, ‘Inquiry could end in dozing judge's sacking’ The Australian (Sydney), 1 June 2005, 5.

[16] C. Merritt, ‘Copy-cat magistrate caught again’ The Australian (Sydney), 31 March 2006, 25.

[17] Judicial Officers Act 1986 (NSW).

[18] Judicial Officers Act 1986 (NSW) s 5.

[19] Judicial Officers Act 1986 (NSW) s 15(1).

[20] Judicial Officers Act 1986 (NSW) s 18.

[21] Following the criteria laid down in the Judicial Officers Act 1986 (NSW) s 20(1).

[22] Judicial Officers Act 1986 (NSW) s 19.

[23] Judicial Officers Act 1986 (NSW) s 30(1).

[24] Judicial Officers Act 1986 (NSW) s 30(2).

[25] Judicial Officers Act 1986 (NSW) s 21.

[26] Judicial Officers Act 1986 (NSW) s 22(1).

[27] Judicial Officers Act 1986 (NSW) ss 22(2), 22(4).

[28] Judicial Officers Act 1986 (NSW) ss 23-24.

[29] Judicial Officers Act 1986 (NSW) ss 29(1), and 29(7).

[30] Judicial Officers Act 1986 (NSW) s 26.

[31] Judicial Officers Act 1986 (NSW) s 27.

[32] Judicial Officers Act 1986 (NSW) s 28.

[33] Judicial Officers Act 1986 (NSW) s 29(3).

[34] Judicial Officers Act 1986 (NSW) s 34.

[35] Judicial Officers Act 1986 (NSW) s 35.

[36] Potas, above n. 12, 113.

[37] Sallmann, above n. 14, 15, citing Sir A. Mason, ‘Judicial Accountability’ (Paper for a Judicial Conduct and Ethics Conference, Dublin, Ireland, May 2000), 12.

A New South Wales-type judicial commission at the federal level? Constitutional Limits

 

Currently in Australia there are no provisions for evaluating allegations of misbehaviour or incapacity by Australian federal judges. The Australian judiciary has come under scrutiny of recent times and has been told it needs to adapt to accommodate a higher standard of judicial accountability and transparency in disciplinary procedures. However, reforms in the area of judicial accountability naturally raise issues of judicial independence. One suggestion that has been put forward is to implement an Australian judicial commission similar to the New South Wales system to receive and handle complaints. This paper will examine the New South Wales model and discuss whether such a system is compatible with the Commonwealth Constitution. It shall be argued that there are constitutional issues arising from establishing such a system, although the extent of this really depends on how far one reads into the Constitution. Nonetheless, it seems unlikely that such a model could work at the federal level.

 

The Relevant Constitution Provisions

Judicial tenure is protected under s 72(ii) of the Constitution which ensures that aside from reaching the retirement age, judges can only be removed following a parliamentary address by both houses finding proved misbehaviour or incapacity. Judicial tenure is considered the primary safeguard of judicial independence, and thus judicial impartiality.[1]

 

Section 72(ii) applies to all federal courts.[2] ‘Misbehaviour’ is understood to have a wide meaning and encompasses judicial and criminal behaviour, as well as any other conduct that Parliament might ultimately consider would render a judge unfit for office.[3] This could include conduct that brings into question the suitability or authority of a judge;[4] conduct that is morally wrong;[5] or behaviour that destroys public confidence in the judge to perform his or her official duties.[6] Incapacity includes mental and physical inability to perform judicial duties.[7]

 

It is obvious that there may be some instances of misbehaviour that would not warrant removal. As such, allegations of misbehaviour are able to be divided into two categories: allegations that could warrant removal and allegations that do not – but how to distinguish between the two? The purpose of this essay is to ask whether a New South Wales-type judicial commission could be useful in this respect.

 

The Current System

The current system in place for evaluating allegations of misbehaviour of federal judges is largely an informal one with the Chief Justice, Judge or Magistrate, and the Attorney-General evaluating complaints for themselves and assessing what action, if any, is appropriate.[8] As Justice Thomas writes, ‘The apparently low level of public discontent suggests that this informal system has functioned tolerably well throughout our judicial history.’[9]

 

This begs the question, is there really a need for reform? It stands as a testament to the high quality of the Australian judiciary that since federation there has only been one case of an inquiry being initiated regarding a federal judge, but this was later abandoned.[10] In fact, in the context of both state and federal judges there has only been one instance post-federation of a judge being dismissed on address by Parliament.[11] However, it should be observed that it is not unusual for a judge to resign once questions as to their behaviour or capacity have come under investigation.[12] As a result, there is a tendency to regard the lack of high profile cases as a reason against the need for formal mechanisms.[13]

 

But the merits of this reasoning can be questioned. It could be said that it is increasingly a sign of modernity amongst common law countries to have formalised mechanisms for evaluating allegations of judicial misbehaviour.[14] Furthermore, it should be considered that over the years, there have been a number of scandals regarding judges’ behaviour that has been reported by the media to the public, whether substantiated or not. Along with the 1980s scandals concerning Justice Murphy and Justice Vasta, there has been Senator Heffernan’s allegations in 2002 against Justice Kirby which were later retracted; the jailing of a Queensland Chief Magistrate; a number of instances of judicial officers failing to or allegedly failing to lodge tax returns; and a New South Wales judge who allegedly fell asleep during a number of trials, including a rape trial.[15] Recently, a Queensland Magistrate was caught having plagiarised a colleague’s judgment.[16] Thus, it is possible to see how perhaps to the public, there does seem to be enough mischief occurring on the bench to warrant the introduction of a formal commission to evaluate allegations of judicial misconduct and incapacity.

 

As such, it is argued that some sort of machinery should be formulated to evaluate allegations. One obvious reform is to implement an Australian judicial commission, modelled on the New South Wales Judicial Commission, established in 1986 by the Judicial Officers Act 1986 (NSW).

 

New South Wales model

The New South Wales Judicial Commission is a system established to examine complaints against judges and other judicial officers.[17] It is made up of ten members, including the various Heads of Jurisdiction and four government appointees.[18] It may receive a complaint from any person about matters concerning ‘the ability or behaviour of a judicial officer’.[19] Once a complaint has been made a preliminary inquiry is conducted by the Commission into the matter, and as far as possible, in private.[20] At the conclusion of the inquiry, it is then determined whether the complaint should be summarily dismissed,[21] or whether it should be classified as ‘minor’ or ‘serious’.[22] The term ‘serious’ is defined as a complaint which if established, could, in the opinion of the Commission, justify parliamentary consideration of the removal of the judicial officer from office.[23] All other complaints that are not summarily dismissed or classified as serious are classified ‘minor’.[24]

 

All serious complaints, and some minor complaints not referred to the Heads of Jurisdiction, are referred to the Conduct Division of the Commission.[25] The Conduct Division consists of three persons appointed by the Commission.[26] Members must be judicial officers, and need not be members of the Commission, although one may be a retired judicial officer.[27] The Conduct Division conducts further investigation of the matter, as far as practicable in private, and may convene a hearing.[28]

 

Once a complaint is dealt with, the Conduct Division prepares a report of its findings to the Commission in the case of minor claims, and to the Governor in the case of serious claims.[29] The Conduct Division can dismiss a complaint if it decides the claim was not substantiated.[30] In regards to a minor matter that has been wholly or partly substantiated, it can decide to take no action, or simply inform the judicial officer.[31] If a serious matter has been wholly or partly substantiated, the Conduct Division can ‘form the opinion’ that the matter could justify parliamentary consideration of removal,[32] in which case the Attorney-General must lay the report before both Houses of Parliament.[33] In addition, the Conduct Division may request that the judicial officer in question undergo a medical examination,[34] or refer the complaint to an appropriate body or person, be it a minor or serious matter.[35] As noted by Potas, ‘The key point to note is that the Commission’s powers are essentially investigatory and it has no power under the legislation to discipline a judicial officer’.[36]

 

Constitutional Limits on implementing a New South Wales-type Commission

The main argument against such a model being implemented at the federal level is that s 72(ii) is the only provision in the Constitution relating to the discipline of federal judges, and is thus the only authorised means of disciplining federal judges. A judicial commission would operate outside of this rule, and therefore would be unconstitutional on the grounds that it would infringe the principles of judicial independence reflected by Chapter III of the Constitution.

 

This follows a strict interpretation of the Constitution and places a lot of importance on judicial independence – but is this reading too far into the Constitution? It should of course be remembered that the purpose of judicial independence is not to protect judges, but to protect the public by ensuring that a case will be decided with impartiality.[37] If a judicial commission was established, the ultimate power of removing judges would still, as required by the Constitution, remain with Parliament. The commission would have no power to sanction judicial officers – its core function would be to evaluate allegations and either summarily dismiss them, or classify them as minor or serious.

 

Handsley has asked whether the danger of executive interference in the independence of the judiciary is as great now as it was when the principle was first formulated. [38] She argues that in contrast to the end of the 17th century, the public is more likely to be able to identify any ‘witch-hunt’ and debate it; parliament now has a greater capacity to stop abuses of executive power; and the fact that executive power rests in a group rather than in an individual is likely to make it harder for the executive to engage in capricious or arbitrary conduct.[39]

 

These arguments are supported by the observation that judicial independence in New South Wales does not appear to have been threatened by the established commission.[40] Thus, there is a chance that, as in New South Wales, if such a commission were to be implemented at the federal level there would be an initial furore about the legislation, but that would eventually abate.[41]

 

However, one must also consider the special position of the High Court, as the highest court in Australia’s judicial system. The Law Council has said it is ‘imperative that the conduct of a High Court judge should remain firmly for sole consideration and scrutinisation by the two Houses of Parliament.’[42] A judicial commission runs the risk of the High Court having to consider a justiciable complaint against one of their own, arising from a complaint made about a High Court justice to such a federal judicial commission.[43] Not only that, but there is also the potential for interference to occur with the appellate process,[44] which is made all the more serious in light of the High Court’s apex role in the Australian judicial system.

 

If High Court justices were to be excluded, it creates the inconsistency of having a formal mechanism for federal judges with the glaring exception of the High Court. This could undermine public confidence in such a process, which in turn could risk undermining public confidence in the judiciary.

 

Conclusion

The limits on interference with judicial independence found in the Constitution would make it hard for a judicial commission based on the New South Wales model to be established at the federal level. Although there are calls for greater accountability these days, a judicial commission based on the New South Wales model is not the only option. In fact, the Federal Government is likely to introduce a protocol for dealing with complaints, rather than implement a standing commission.[45] There is a chance that, as was the case in New South Wales, if such a commission were to be implemented at the federal level there would be an initial furore about the legislation, but that would eventually abate.[46] On the other hand, the Chapter III requirements and the special position of the High Court as the apex of Australia’s judicial system might make objections to legislation at the federal level all the more stronger. As such, a judicial commission based on the New South Wales model should not be implemented at the federal level for evaluating allegations of misconduct or incapacity of federal judges.

 

Word count: 2,457.

 

Bibliography

  • Australian Law Reform Commission, Managing Justice – A Review of the Federal Civil Justice System, Report No. 89 (2000).
  • Blackshield, Anthony R., ‘The Appointment and Removal of Federal Judges’ in Brian Opeskin, and Fiona Wheeler (eds.) The Australian Federal Judicial System (Carlton South, Victoria: Melbourne University Press, 2000).
  • Campbell, Enid and Lee, Hoong Phun, The Australian Judiciary (Cambridge: Cambridge University Press, 2002).
  • Drummond, Justice Douglas, ‘Do Courts Need a Complaints Department?’ (2001) 21 Australian Bar Review 11.
  • Handsley, Elizabeth, 'Issues Paper on Judicial Accountability’ (2001) 10 Journal of Judicial Administration 180.
  • Hicks, Ron, ‘Scrutiny of judges' standards’ The Australian (Sydney), 25 May 2006, 5.
  • Kirby, Justice Michael, ‘Judicial Independence in Australia Reaches A Moment of Truth’ (1990) 13 University of New South Wales Law Journal 187.
  • Lane, P.H. ‘Constitutional Aspects of Judicial Independence’ in Helen Cunningham (ed.) Fragile Bastion: Judicial Independence in the Nineties and Beyond (Sydney: Judicial Commission of New South Wales, 1997), 53.
  • Lush, Sir George, Blackburn, Sir Richard, and Wells, Andrew, ‘Parliamentary Commission of Inquiry re Justice Murphy’ (1986) 2 Australian Bar Review 203.
  • Merritt, Chris, ‘Inquiry could end in dozing judge's sacking’ The Australian (Sydney), 1 June 2005, 5.
  • Merritt, Chris, ‘Copy-cat magistrate caught again’ The Australian (Sydney), 31 March 2006, 25
  • Potas, Ivan, ‘The Judicial Commission of NSW: Treading a Fine Line Between Judicial Independence and Judicial Accountability’ in Chris Corns (ed.) ‘Reshaping the Judiciary’ (2000) 18 The Law in Context 102.
  • Quick, Sir John and Garran, Sir Robert, The Annotated Constitution of the Australian Commonwealth (Sydney: Angus and Robertson, 1901).
  • Sallmann, Peter, ‘Judicial Conduct: Still A Live Issue?’ (Colloquium Paper presented at the Judicial Conference of Australia, Sunshine Coast, 3 September 2005) <www.jca.asn.au/pubs/SallmannPaper.doc> at 14 May 2006.
  • Thomas, Justice James B., Judicial Ethics in Australia (2nd ed., Sydney: Law Book Company, 1997).

 

 

 

[1] E. Handsley, ‘Issues Paper on Judicial Accountability’ (2001) 10 Journal of Judicial Administration 180, 183.

[2] P. H. Lane, ‘Constitutional Aspects of Judicial Independence’ in H. Cunningham (ed.) Fragile Bastion: Judicial Independence in the Nineties and Beyond (Sydney: Judicial Commission of New South Wales, 1997), 53, 64.

[3] Ibid, 62-63.

[4] G. Lush, R. Blackburn and A. Wells, ‘Parliamentary Commission of Inquiry re Justice Murphy’ (1986) 2 Australian Bar Review 203, 210.

[5] Ibid, 221.

[6] Ibid, 230.

[7] J. Quick and R. Garran, The Annotated Constitution of the Australian Commonwealth (Sydney: Angus and Robertson, 1901), 732.

[8] E. Campbell and H. P. Lee, The Australian Judiciary (Cambridge: Cambridge University Press, 2002), 118, citing J. Waugh, ‘A question of Capacity: The Case of Justice Bruce’ (1998) 9 Public Law Review 223.

[9] J. B. Thomas, Judicial Ethics in Australia (2nd ed., Sydney: Law Book Company, 1997), 256.

[10] See further A. R. Blackshield, ‘The Appointment and Removal of Federal Judges’ in B. Opeskin, and F. Wheeler (eds.) The Australian Federal Judicial System (Carlton South, Victoria: Melbourne University Press, 2000).

[11] Justice Vasta. See further, M. Kirby, ‘Judicial Independence in Australia Reaches A Moment of Truth’ (1990) 13 University of New South Wales Law Journal 187, 200-202.

[12] For example, Justice Bruce of the New South Wales Supreme Court. See further, I. Potas, ‘The Judicial Commission of NSW: Treading a Fine Line Between Judicial Independence and Judicial Accountability’ in C. Corns (ed.) ‘Reshaping the Judiciary’ (2000) 18 The Law in Context 102, 114-116.

[13] D. Drummond, ‘Do Courts Need a Complaints Department?’ (2001) 21 Australian Bar Review 11.

[14] P. Sallmann, ‘Judicial Conduct: Still A Live Issue?’ (Colloquium Paper presented at the Judicial Conference of Australia, Sunshine Coast, 3 September 2005) <www.jca.asn.au/pubs/SallmannPaper.doc> at 14 May 2006, 9-10.

[15] Ibid. See further, C. Merritt, ‘Inquiry could end in dozing judge's sacking’ The Australian (Sydney), 1 June 2005, 5.

[16] C. Merritt, ‘Copy-cat magistrate caught again’ The Australian (Sydney), 31 March 2006, 25.

[17] Judicial Officers Act 1986 (NSW).

[18] Judicial Officers Act 1986 (NSW) s 5.

[19] Judicial Officers Act 1986 (NSW) s 15(1).

[20] Judicial Officers Act 1986 (NSW) s 18.

[21] Following the criteria laid down in the Judicial Officers Act 1986 (NSW) s 20(1).

[22] Judicial Officers Act 1986 (NSW) s 19.

[23] Judicial Officers Act 1986 (NSW) s 30(1).

[24] Judicial Officers Act 1986 (NSW) s 30(2).

[25] Judicial Officers Act 1986 (NSW) s 21.

[26] Judicial Officers Act 1986 (NSW) s 22(1).

[27] Judicial Officers Act 1986 (NSW) ss 22(2), 22(4).

[28] Judicial Officers Act 1986 (NSW) ss 23-24.

[29] Judicial Officers Act 1986 (NSW) ss 29(1), and 29(7).

[30] Judicial Officers Act 1986 (NSW) s 26.

[31] Judicial Officers Act 1986 (NSW) s 27.

[32] Judicial Officers Act 1986 (NSW) s 28.

[33] Judicial Officers Act 1986 (NSW) s 29(3).

[34] Judicial Officers Act 1986 (NSW) s 34.

[35] Judicial Officers Act 1986 (NSW) s 35.

[36] Potas, above n. 12, 113.

[37] Sallmann, above n. 14, 15, citing Sir A. Mason, ‘Judicial Accountability’ (Paper for a Judicial Conduct and Ethics Conference, Dublin, Ireland, May 2000), 12.

[38] Handsley, above n. 1.

[39] Ibid, 190.

[40] Handsley, above n. 1, 193.

[41] Campbell and Lee, above n. 8, 120.

[42] Australian Law Reform Commission, Managing Justice – A Review of the Federal Civil Justice System, Report No. 89 (2000), [2.270].

[43] Ibid.

[44] Ibid, [2.267].

[45] R. Hicks, ‘Scrutiny of judges' standards’ The Australian (Sydney), 25 May 2006, 5.

[46] Campbell and Lee, above n. 8, 120.

[38] Handsley, above n. 1.

[39] Ibid, 190.

[40] Handsley, above n. 1, 193.

[41] Campbell and Lee, above n. 8, 120.

[42] Australian Law Reform Commission, Managing Justice – A Review of the Federal Civil Justice System, Report No. 89 (2000), [2.270].

[43] Ibid.

[44] Ibid, [2.267].

[45] R. Hicks, ‘Scrutiny of judges' standards’ The Australian (Sydney), 25 May 2006, 5.

[46] Campbell and Lee, above n. 8, 120.