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Judging the judges

By James McConvill - posted Thursday, 25 May 2006


By 2009, three out of the current justices of the High Court will reach 70 and must retire. Given the success of the US confirmation process in fostering knowledge of, and respect for, the Supreme Court and its justices, now might be the time to introduce a similar appointment process here. The attorney-general could still select the nominee on behalf of the federal government. But then, rather than just issuing a press release, the attorney-general would need to have the appointment approved by a Senate majority.

The Howard Government is reportedly considering establishing a judicial commission to investigate complaints of misbehaviour by federal judges. There are about 150 federal judges in the four Federal courts: the Family Court, Federal Court, Federal Magistrates Court and, of course, the High Court. Yet there is no federal mechanism for investigating complaints.

Under s 72(ii) of the constitution, federal judges can only be removed if a joint sitting of the Federal Parliament passes a motion that a judge be removed for "proved misbehaviour or incapacity".

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High Court Chief Justice Murray Gleeson suggests a judicial commission could present problems if it assumes any of Parliament’s constitutional authority to deal with judicial misconduct.

For a federal judicial commission to operate within constitutional boundaries, it is important the body have merely an advisory role, with a joint sitting of parliament still to decide the case for removal. Law Council of Australia President John North suggested the establishment of a body made up of retired High Court judges to hear complaints. Australian Bar Association President Glenn Martin SC wrote in The Australian that there should be an independent body, with members appointed "pursuant to an agreed protocol".

The consensus seems to be that the ultimate decision on removal should remain with parliament (perhaps because of the difficulty of changing this through a successful constitutional referendum) but a body independent of parliament should investigate complaints.

I disagree. If parliament is to eat the cake, it should be allowed to bake it, too. If it is important for parliament, the people's representatives, to have the power to remove federal judges for misbehaviour or incapacity, it should also have the power to investigate complaints. There is nothing wrong with a one-stop shop.

There should be a permanent senate judiciary committee which conducts hearings to determine the suitability of High Court (and other federal court) nominees.

If the Howard Government is to establish a means of investigating complaints against federal judges, there is no better forum than such a committee. I believe the committee should be able to investigate whether judges should enter the door - and whether they should exit.

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This would depart from the US approach, where federal judges are subject to impeachment if it is alleged they have misbehaved, but a senate judiciary committee would be equally effective. A permanent bipartisan senate judiciary committee would not have an open mandate to go after any federal judge it chooses. Complaints would be referred to the committee by the Attorney-General's Department if it thought such action warranted.

The reasons for each decision by the Attorney-General's Department would be made available to the committee on a confidential basis, The committee would have only an advisory role, thus staying within the bounds of the constitution.

The committee would release its recommendation (for or against a joint sitting to consider removal), and its reasons. During the inquiry, the committee could consult widely. No doubt constitutional lawyers and academics would want to have their two cents' worth at the greatest show in town.

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Article edited by Virginia Tressider.
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About the Author

James McConvill is a Melbourne lawyer. The opinions expressed are his personal views only, and were written in the
spirit of academic freedom when James was employed as a university lecturer.

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