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Legislative Assembly for the ACT: 2010 Week 11 Hansard (Tuesday, 19 October 2010) . . Page.. 4555 ..


The establishment of a judicial commission is a serious matter. As the outcome of the now defunct commission would have itself been a matter for the Assembly to consider, I consider it appropriate to set out to the Assembly itself the circumstances of this matter and the action taken.

As members will no doubt recall, I was contacted by Magistrate Fryar and Magistrate Burns, as he then was, on 23 October 2009 regarding the transmission from Mr Cahill’s chambers to Special Magistrate Lauritsen of documents relating to a criminal matter before the ACT Magistrates Court. The defendant in those criminal proceedings was a public figure known to Mr Cahill both professionally and socially who had been charged with common assault. Both magistrates Burns and Fryar expressed concern to me about the content of the material sent to Special Magistrate Lauritsen. They believed the transmission of that material should be brought to my attention as Attorney-General on the basis that the material had the potential to influence the outcome of the criminal proceedings.

Upon receiving the information from magistrates Burns and Fryar, I reviewed in detail the documents sent to me and sought the advice of the Chief Solicitor and I informed the Director of Public Prosecutions. The director, upon his own initiative, referred the matter to ACT Policing for investigation.

The Judicial Commissions Act 1994 establishes a framework for handling complaints in relation to judicial officers. The act does not limit the range of communications that may constitute a complaint but sets out two essential features which such a communication must possess. First, it must relate to the behaviour of a judicial officer and, secondly, it must be written, identify the name and address of the source, identify the judicial officer and give full particulars of the matter. Whether the person who provides the information to me intends to make a complaint under the act is irrelevant to whether I am satisfied that the requirements of the act are met. I am entitled and, indeed, may even be required, to treat any communication which possesses the features set down by the act as a complaint under the act. It would be inconsistent with my role as Attorney-General and first law officer under the Law Officer Act 1992 to do otherwise than treat communications as complaints provided the essential features are satisfied.

In considering a complaint as Attorney-General, I cannot be confined to a rigid form of documentation. The purpose of the act is to provide a mechanism by which potential judicial misconduct may be examined, and I must view my role under the act with that in mind and not be confined by artificial limits on form. When examining the material which was provided to me by magistrates Burns and Fryar, the only conclusion that could be drawn was that the material was, by its nature, a complaint about the behaviour of a judicial officer. I am entitled if not obliged as first law officer to examine and consider material given to me and to draw from it the essence of the allegation that a plain reading of the material provides.

Under the act it is incumbent on me as Attorney-General not to prejudge any suggestions or allegations of judicial misconduct but to determine whether, if substantiated, the alleged conduct could justify consideration by the Assembly of a


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