The national Attorney-General has released a discussion paper on Scoping the establishment of a federal judicial commission .
The paper states
The Australian Government is considering the potential scope and design of a federal judicial commission that can independently examine complaints made to it about federal judges and refer its findings for appropriate action. This was announced by the Attorney-General, the Hon Mark Dreyfus KC MP, on 25 October 2022 in the context of the 2022-23 Budget, and reflects the Attorney-General’s longstanding support for a federal judicial commission.
On 29 September 2022, the Government published its response to the Australian Law Reform Commission’s (ALRC) 2021 report, Without Fear or Favour: Judicial Impartiality and the Law on Bias (ALRC Report), agreeing in-principle with the ALRC’s recommendation that the ‘Australian Government should establish a federal judicial commission’. The ALRC acknowledged that establishing a federal judicial commission would be a significant reform, requiring its own policy development process, including further broad consultation.
The establishment of a federal judicial commission would follow the creation of similar bodies in five of Australia’s states and territories, and would build on the Australian Government’s strong commitment to integrity, fairness and accountability across all areas of government, including by complementing the National Anti-Corruption Commission which will commence operation in 2023.
This paper seeks views from stakeholders and interested members of the public on the model and key features of a federal judicial commission. This paper does not consider reforms to complaints-handling mechanisms for non-judicial officers or state and territory judges, nor does it canvass the implementation of other recommendations from the ALRC Report.
The Australian Government has not yet made any decisions on the merits and policy design of a federal judicial commission.
Responses to this discussion paper will be considered by the Attorney-General’s Department to inform advice to Government in relation to the merits and design of a model for a federal judicial commission. Any proposed model for a federal judicial commission must respect the independence of the courts and judiciary in accordance with the Constitution, which is fundamental to the rule of law and democracy in Australia. The decision to establish a federal judicial commission will be a matter for the Australian Government.
The questions for consideration are -
Composition and decision-making
1. Should the membership of a federal judicial commission include some or all of the heads of jurisdiction of the High Court of Australia, the Federal Court of Australia and the Federal Circuit and Family Court of Australia?
2. Should a federal judicial commission have any other ex officio or appointed members? If so, how many members should constitute the commission, and what criteria and appointment processes should apply?
3. How should decisions of a federal judicial commission be made where the members are not able to unanimously agree?
Scope: judicial officers
4. Should a federal judicial commission be empowered to examine complaints about a justice of the High Court in addition to other federal judges?
5. Should a federal judicial commission be empowered to examine complaints about a former judicial officer and, if so, in what circumstances?
Grounds for considering complaints
6. Should a federal judicial commission be empowered to examine a complaint related to any matter that, if substantiated, the commission is satisfied: a. may justify removal by the Governor-General in Council on an address from both Houses of the Parliament on the ground of proved misbehaviour or incapacity, or b. warrants further consideration on the ground that it may affect or may have affected: i. the performance of judicial or official duties by the officer, or ii. the reputation of the court of which the judge is or was a member?
7. Are there any circumstances in which a federal judicial commission should not be empowered to examine a complaint that meets one of the above criteria?
8. Are there any circumstances in which a federal judicial commission should be empowered to examine a complaint that does not meet the above criteria?
9. Would it be appropriate to have any additional limitations on a federal judicial commission’s jurisdiction to handle complaints about a matter arising after the resignation of a judicial officer, or concerning conduct alleged to have occurred before the appointment of a judicial officer to judicial office or before the commencement of any enabling legislation?
Avenues for receiving complaints
10. Should a person be able to make a complaint to a federal judicial commission anonymously, and in what circumstances would this be appropriate?
11. Should it be open to professional bodies to make complaints to a federal judicial commission? If so, should any limitations apply?
12. Should any person be able to make a complaint to a federal judicial commission with a request for confidentiality regarding the particulars of the complaint, or the identity of the complainant?
13. Should a federal judicial commission have the discretion to: a. consider multiple complaints together, and b. take into account repeat conduct of the same or similar nature in relation to the same judicial officer, and if so, should any limitations apply?
14. Should a federal judicial commission have discretion to initiate an investigation on its own motion if it considers a matter would otherwise meet its thresholds for consideration if it were the subject of a complaint?
15. Should consideration be given to providing a federal judicial commission with express powers to declare a person to be a vexatious complainant?
Actions a commission may take
16. Should the grounds on which a federal judicial commission may appoint an ad hoc investigatory panel to investigate and report on a complaint be expressly limited to matters that a commission considers could, if substantiated, justify removal from office? Alternatively, would it be appropriate for a federal judicial commission to have a discretion to establish an ad hoc investigatory panel to investigate and report on a complaint if the commission considers such an investigation to be appropriate in the circumstances?
17. Should the identity of judicial officers, the subject matter of complaints, and/or the findings or recommendations made by a federal judicial commission or ad hoc investigatory panel be made publicly available? If so, at what stage in the complaints process and on what, if any, conditions?
Composition of an investigatory panel
18. How should an ad hoc investigatory panel established by a federal judicial commission be constituted? What criteria and appointment processes should apply?
Powers of the commission and an investigatory panel
19. Would it be appropriate for a federal judicial commission to have the same powers as an ad hoc investigatory panel established by the commission, including the ability to issue summonses and examine witnesses? If not, how and why should the powers of the commission differ from the powers of an investigatory panel?
Intersection with other bodies and processes
20. How could a federal judicial commission best complement or support the role of existing judicial education bodies, such as the National Judicial College of Australia and the Australasian Institute of Judicial Administration?
21. Should complainants be able to rely on evidence resulting from a complaints process, or the findings or recommendations made by a federal judicial commission, in other proceedings?
