Page 97 - Week 01 - Tuesday, 10 February 2015

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Under this bill, the council will not deal with complaints against presidential members of the ACT Civil and Administrative Tribunal. The bill requires the attorney to approve a separate complaints-handling protocol by notifiable instrument.

The judicial council will have power to make recommendations to jurisdictional heads as to courses of action in response to complaints. If the council is of the view that a complaint, if substantiated, could result in removal of a judicial officer from office, it will also have the power to recommend that the executive establish a judicial commission. In such cases the executive must appoint a commission.

Any complaints submitted to the attorney will have to be referred as soon as possible to the council. The council head is the Chief Justice, who also has a casting vote. The second member will be the Chief Magistrate. The executive will appoint two other members, in consultation with the Chief Justice and the Chief Magistrate. One of them must be a legal practitioner nominated jointly by the Law Society of the ACT and the ACT Bar Association. The other will be a person who, in the executive’s opinion—and I quote from the bill—has the necessary “qualifications and experience”.

The executive, again in consultation with the Chief Justice and the Chief Magistrate, can appoint acting members, and the Chief Justice and the Chief Magistrate will have certain powers of delegation.

The bill contemplates—and I quote again from the bill—“a principal officer and other staff considered suitable by the council”. The council will be able to delegate certain functions to staff.

Other important operational elements are that the council or a commission can appoint a lawyer as counsel assisting; generally, council hearings are to be held in private; persons appearing may be represented by lawyers; witnesses can be examined and cross-examined; subpoenas can be issued; privilege is provided; hearings are legal proceedings under chapter 7 of the Criminal Code; there are contempt provisions with penalties; and the council can refer matters to the police.

An important new provision in the Judicial Commissions Act, introduced in this bill, is that proceedings and decisions of the council and, indeed, commissions, are not subject to the Administrative Decisions (Judicial Review) Act 1989. Nor will proceedings be able to be brought for injunction, declaration or prerogative order.

This brings me to the cautions that I mentioned earlier. There are four main concerns with this bill. First, the ACT is a small jurisdiction with only a few judges and magistrates in a close-knit legal fraternity. A council that includes peers will inevitably face conflicts of interest. There are provisions to deal with conflicts of interest, but these are likely to come into play in almost every case.

I would have thought a better approach—maybe—is to consider establishing a more independent council, perhaps made up of judges from interstate or retired. It would provide an opportunity to review the make-up of the commission as well.

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