THOSE who ignore history are doomed to repeat it. And I am talking about recent history. Remember the Murphy affair and more recently the Greiner affair. Much of the uncertainty and injustice done in the those cases resulted from the words in the Constitution and the ICAC Act, respectively, about judging the conduct of public officials.
The Judicial Commissions Bill has just been tabled in the ACT Legislative Assembly. It sets out the procedure for the removal of judicial officers for misbehaviour or incapacity. Yet it doing so it uses very similar words to those that caused so much controversy in the Greiner and Murphy cases.
To be fair, the Bill goes some way to address the difficulties that faced Parliament in the Murphy case, but not completely.
The Bill provides that complaints can be made to the Attorney-General. If the AG is satisfied that the complaint could, if substantiated, justify the Assembly resolving the judicial officer should be removed, the AG asks the Executive to appoint a judicial commission.
The Assembly itself can request the appointment of the judicial commission if the AG fails to. Fine so far.
The commission investigates. If it finds certain things it reports to the Assembly. The Assembly then hears the judicial officer and votes to require the Executive to remove the judicial officer on the ground of misbehaviour or incapacity.
The difficulty comes with those certain things. The Bill provides that the commission’s report only goes to the Assembly if it “”concludes that the behaviour of physical or mental capacity of the judicial officer concerned could amount to proved misbehaviour or incapacity such as to warrant removal from office”.
Let’s compare that with the troublesome ICAC Act. It is says (and I omit words irrelevant to this argument): “”Corrupt conduct is also any conduct that could adversely affect the exercise of official functions by any public official” but it “”does not amount to corrupt conduct unless it could constitute reasonable grounds for dismissing a public official.”
This word could causes the problem. The investigating commission does not have to find üthe fact@ of corruption or misbehaviour warranting dismissal, only that the conduct ücould@ amount to corruption or misbehaviour warranting dismissal.
The distinction was roundly criticised by all the judges of the NSW Court of Appeal and by the ICAC commissioner, Ian Temby, QC, himself.
Justice Mahoney said an adverse finding against an official can be made not by “”what is the fact, but according to what could be the fact”.
He said the ambit and the uncertainty introduced by the word “”could” was extensive.
It sounds esoteric and is hard too grasp. And that is precisely the complaint about having this sort of test _ the more so when it is being applied to the removal of high public officers.
It created enormous unfairness to Greiner, and could create unfairness if a judicial officer, heaven forbid, is accused in the ACT.
There is, supposedly, a safeguard. Once the commission has made a finding that the behaviour could warrant dismissal, the Assembly must vote that it actually does warrant dismissal. But the safeguard is illusory. Greiner supposedly had the same safeguard, admittedly with political overtones. Once the commission makes such a finding, which is tabled publicly in the Assembly, the judge would be finished, however the Assembly voted.
That being the case, it would be better if the commission had to make a finding of actual fact, not of what could be the fact.
The trouble with the present low threshold is that in practical terms it determines the fate of the judicial officer.
The next question of uncertainty in the new law is: what constitutes misbehaviour warranting dismissal? These were the words that caused such difficulty in the Murphy case.
Section 72 of the Constitution provides: “”Justices of the High Court and of the other courts created by the Parliament shall not be removed except by the Governor-General in Council on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity.”
The trouble with the provision is that it is silent as to who does the proving. If the judge is convicted of a criminal offence, then there is no problem. Otherwise, what is to stop Parliament just capriciously saying it is proved? If it does, can the Governor-General exercise a discretion?
Justice Lionel Murphy of the High Court was convicted of attempting to influence the NSW Chief Magistrate in July 1985. That conviction was quashed on appeal and he was found not guilty at a subsequent trial.
However, the prosecutor recommended he be charged with other offences so the Opposition pushed for a Senate inquiry. The Government then announced its own parliamentary inquiry.
Parliament was then faced with the question: what is proved misbehaviour. To help decide this, it set up a parliamentary commission comprising former ACT Chief Justice Sir Richard Blackburn and former state judges Sir George Lush and Andrew Wells, QC.
They ruled on the question shortly before Justice Murphy died and the inquiry was abandoned.
The precedent of setting up a commission in that case obviously guided the thinking behind the new ACT law.
The Murphy commissioners held that misbehaviour was not confined to criminal conduct nor confined to actions taken during the exercise of judicial functions.
They said: “”If their conduct, even in matters remote from their work, is such that is would be judged by the standards of the time to throw doubt on their own suitability to continue in office, or undermine their authority as judges of the standing of their courts, it may be appropriate to remove them.”
If standards of the time are to be the test, then surely the elected representatives of the people are better judges of that than the appointed commissioners.
It is true that there is a danger that the Assembly would vote on political lines, as the Greiner and Murphy cases show. But there is a better way of overcoming that difficulty than the use of the cumbersome and dangerously low threshold test set in this Bill for the judicial commission.
We could borrow from the US Constitution which provides that judges can only be removed after the two-thirds majority vote after a trial in the Senate. The requirement of a separate trial oath by the members of the Assembly and the two-thirds requirement would remove the possibility of party-line voting or capricious voting.
That requirement in the US has ensured the independence of the judiciary for 200 years. Various calls by congressmen irate at particular judicial decisions have fallen flat. For example, a call in 1953 to impeach Justice William O. Douglas for granting a stay of execution to the convicted atomic spies Julius and Ethel Rosenberg fell flat, even in the height of the McCarthy era.
The alternative is to insist that the judicial commission comes to a full factual conclusion. This has difficulties. It means the quasi-judiciary is trying the judiciary. The tradition of the separation of powers has meant that the process of removing a member of the judiciary judges requires action by the legislature.
Well, let the legislature do the whole task.
The ACT Bill has one vital section. It provides that no judicial officer shall be removed without going through a hearing process. This is an essential safeguard against an arbitrary executive dismissing judges.
However, it needs to be strengthened. It should provide that no Act of the Assembly creating a court or tribunal can be repealed without reappointing all their members to the equivalent new tribunal. And this provision, like others guaranteeing the independence of the judiciary needs to be entrenched so it cannot be altered without a referendum.
This would prevent the appalling way Federal politicians got rid of Justice Jim Staples of the Arbitration Commission by just not appointing him to the new Industrial Relations Commission when he Arbitration Commission legislation was repealed and the new body created.
Copies of the Bill are available from Ross Willson of the ACT Attorney-General’s Department on 2070678. The Bill is open for public comment until October 16.