Page 353 - Week 02 - Tuesday, 1 March 1994
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can express its opinion not in respect of the judicial officer but in respect of somebody else who has been caught in the net, somebody who is a player, perhaps only a bit player, in the circumstances that lead to the adverse finding against the judge. If there are adverse findings against that person that may prejudice a fair trial if an offence has been committed, that may prejudice an investigation, that may reveal the existence of confidential sources of information which would prejudice law enforcement or which may prejudice the safety of the person, that part of the report should be kept secret. It does go further than that because it says that there may be prejudice to the safety or reputation of that person.
I guess that it could be argued that that is a little bit broad. I am looking at subclause 22(4). The first three paragraphs there clearly are grounds for a matter being kept secret - prejudicing a fair trial of a person, prejudicing the conduct of an investigation, and prejudicing the source of information to police or prejudicing a person's safety. Clearly, they are good grounds for holding a document secret. It does go a little further to the reputation of a person, which again may well be very good grounds for keeping a matter secret. There could well be circumstances where what is alleged about the judge, his criminal behaviour or behaviour of gross impropriety goes to some issue of morality and where another citizen is involved in gross moral turpitude, or whatever one wants to call the conduct, perhaps conduct falling short of criminal offence, and that citizen has just been caught up in the web. There is no reason why that citizen's name needs to be dragged through the public process. So there could be cases where it is quite proper, because of an adverse effect on the reputation of a citizen, that the matter should not be made public.
The Bill, in its present form, where it goes on to tabling reports, basically says that I must table reports other than under subclause 22(4), other than reports where there is a recommendation to me that, because of safety or prejudicing a trial or prejudicing a reputation, I should not table the report. It does raise the question of whether there is a discretion. I would have thought that there probably was a discretion; but we agreed, in discussing this with Mr Humphries earlier on, that it does make sense that we clarify that. There are some consequential amendments which flow from that. The amendment basically says that, where there has been a recommendation that that part of the report which does not go to the judge's conduct but goes to other persons' conduct not be published, the Attorney-General shall accept that recommendation unless he or she is satisfied that there are compelling reasons of public policy why the relevant report should be laid before the Legislative Assembly.
Again it is creating a discretion. It is fettering it by saying that you really should act on the recommendation for secrecy unless you are satisfied that there are compelling reasons of public policy why the matter should be made public. There could well be cases because, when we get to this point where there has been the full judicial commission inquiry and there is a report, it is probably adverse to a judge, so other consequences may flow. There may be significant public disquiet. There may be a question of preserving confidence in the judicial system which may justify a decision, even though it may do some side damage to a person other than the judicial officer. Perhaps reasons of public policy would compel that we do publish the report.
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