Hon Christopher Finlayson

Part 1 Amendments to Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004

Hon CHRISTOPHER FINLAYSON (Attorney-General) : The member Charles Chauvel raises a couple of substantive points that are worthy of reply. The first relates to the alleged call on the road-to-Damascus change of view. There was a real concern on the part of my party about interference with the conduct of the judiciary.

Having spoken, however, to the Chief Justice and other members of the judiciary, we found they were of the opinion that after a couple of years their initial concerns had evaporated and they felt that the post was relieving the heads of benches of numerous complaints that tended to be made and that there was a filtering system that was put in place. On that basis we were prepared to change our minds. Changing one’s mind is not necessarily a sign of weakness; it can often be a sign of strength, I say to Mr Chauvel. What we are now seeking to do is to ensure that the commissioner is not placed under a huge burden with the number of complaints that are being lodged these days. Sometimes, inevitably, as the member will know, in a relatively small jurisdiction there will be conflicts of interest or other reasons why the commission is unable to deal with the matter. That is why it is proposed that there be a deputy judicial complaints officer.

As the member would know, because he was in partnership with the commissioner Sir David Gascoigne, for example, a number of the member’s and Sir David’s former partners have been appointed to the bench, and it would be rather difficult for the commissioner to have to deal with any complaints against those judges. That is why, having listened to the judiciary and having listened to submissions on the part of the Law Society, the Government, or the National Party, was prepared to change its mind.

I come to the other point the member raised. If the member looks at section 15 of the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004, one sees that the commission is required to conduct a preliminary examination of a complaint and then the commissioner—if one looks at subsection (4)—may make inquiries into the complaint that he thinks is appropriate, obtain documents, and consult the head of bench. Then in subsection (5), having completed the preliminary examination, the commissioner may take certain steps. The commissioner can dismiss the complaint, refer it to the head of bench, or recommend the appointment of a judicial conduct panel.

Commissioners have found that for some complaints a complainant can be satisfied following an explanation or an apology by the judge. What normally happens, as I understand it, is the commissioner will write to the judge who is the subject of complaint and ask for at least a preliminary response. Then on the basis of that there may, for example, be an apology, and that could be considered to be the end of the matter. The new section enables the commissioner not to take further action in respect of a complaint if the commission is satisfied that further consideration of the complaint would in all the circumstances be unjustified. It is really just giving the commissioner additional powers in order to deal with the matter.