2016-04-13
Ms PENNICUIK (Southern Metropolitan) — The Greens will be supporting the Judicial Commission of Victoria Bill 2015, which will establish the Judicial Commission of Victoria. The commission will provide a formal, structured and transparent system for investigating complaints and concerns regarding judicial officers, including judicial registrars and members of the Victorian Civil and Administrative Tribunal (VCAT). The Greens have always been supportive of the establishment of a judicial commission and have raised the issue from time to time in Parliament.
I note that the Attorney-General has said that this commission is modelled on the Judicial Commission of New South Wales, which has been operating for more than 20 years in that jurisdiction, so it is really past time we established a similar commission in Victoria. There are a couple of issues I will raise about the structure of the bill and some of the clauses, but generally the Greens will support the bill. While I may raise some issues, that does not foreshadow that we will not be supporting the establishment of the judicial commission as a whole or the bill as a whole.
It is important to acknowledge the dedication and commitment of judicial officers in the various jurisdictions and the hard work they do in meeting, generally, the high standards that are expected by the community, but it is also important to provide an independent mechanism so that where there are complaints or concerns about the performance of a judicial officer for whatever reason, including because of illness, we can find out what the issues are and what the appropriate course of action might be.
This will of course increase public confidence in the judiciary and in the judicial process by assisting judicial officers to carry out their functions and by putting in place other mechanisms if they are for whatever reason having some problems or difficulties that are affecting their role as a judicial officer. Also I think it is important that the judicial commission, in carrying out its functions, looks at any mechanisms not only to address those concerns but also to assist the judicial officer in getting through those difficulties and resuming their duties if possible.
We understand that the government has consulted with the heads of jurisdiction in the judiciary on this bill and that this bill is supported by them. That is of course very important. We also note that the Law Institute of Victoria broadly supports the model adopted by this bill for the management of complaints and investigations. While the institute has said it does not consider that there are any current underlying or systemic issues with the management of the Victorian court system, it is appropriate to put in place proper structures for handling complaints. It has also said that complaints should be triaged by the heads of jurisdiction and referred to more formal processes where necessary.
Matters related to misconduct or, as I said, health issues may be raised in complaints from the general public and referrals can be made by the head of each court or VCAT or by the Attorney-General. Professional bodies representing the legal profession may also make complaints, on behalf of their members, to the judicial commission. The bill creates a process for a judicial officer or VCAT member facing a complaint or allegation to be stood down from all or some of their duties while an investigation is underway.
The commission will be governed by a board comprising the six heads of jurisdiction as well as four eminent members of the community. As highlighted by members of the judiciary in New South Wales, community representation on the judicial commission is an important feature to address any perception of the commission as judges judging judges.
The Attorney-General has stated that the proposed commission is modelled on the Judicial Commission of New South Wales, which as I mentioned has been operating for more than 20 years. The commission will be able to refer the most serious complaints to a specially convened investigating panel which will include two current or former judicial officers from any Australian jurisdiction and one member of the community.
The investigating panel, as I said, will have those particular representatives. There will also be a pool of members — and people can be a member of that pool for no longer than five years — to assist with appointments to those investigating panels, because there may be a case where there is one or more investigating panels in existence at one time, given whatever circumstances may be facing the commission at the time.
The commission will be supported by a small office comprising a director and staff and will be administrated by Court Services Victoria. The director of the commission will be chosen by the board and will share staff with Court Services Victoria to reduce the potential interference from government. The bill will not change the existing requirement that a special majority of both houses of Parliament must agree before a judicial officer can be removed from their position. Unlike the New South Wales model, the Judicial Commission of Victoria will not have an education or training function, as these functions will remain with the Judicial College of Victoria.
If there is a complaint, for example, against a member of the commission, clause 126(3) states:
… a judicial member of the Board must not participate in the deliberations by the Board about a complaint or referral if the judicial member is the subject of the complaint or referral —
which seems pretty obvious, but it is good that it is actually spelt out in the bill. The bill also makes a special arrangement if a complaint is made against the Chief Justice of Victoria. In that instance the bill provides that the chief justice may not participate in the board's deliberations about the complaint, but the next most senior judge of the Supreme Court may do so. This arrangement reflects the position of the chief justice as the most senior judicial officer in Victoria and the need to ensure that complaints against the chief justice are handled by judicial officers of appropriate seniority.
Some of the issues that have been raised with us include, for example, the definition under clause 3 of 'medical examination':
medical examination means any physical, psychological, psychiatric or other medical examination.
Some commentators have queried with us whether the term 'or other medical examination' is too vague and is needed. I have to say that if the first three words, 'physical, psychological, psychiatric', do not cover the field, I am not sure what any other type of medical examination might be. That is a concern that has been raised with us by some people.
In terms of clause 14, that an officer concerned in a complaint must be given notice of the complaint and the opportunity to respond if the matter is to be referred to an investigating panel or nominated head of jurisdiction et cetera, it has been raised with us that ideally there should be further detail in this clause explaining that with the right to respond, the officer can put any documents before a panel or other investigative process, including a hearing of anything he or she considers relevant to the consideration of the complaint. I suppose the question to the government is whether or not this is in fact implied by clause 14, because it is not in the detail of the clause. The clause is silent on when the notice of the complaint should be given to the officer concerned.
Some in the legal fraternity have highlighted that there could be an amendment to clause 14 so that it is expressed subject to clause 18 — that is, it should provide for a delay in giving notice to the officer of a complaint against them in order to avoid the perception that the deliberation process by the officer concerned may have been tainted by an investigation. This is where the complaint relates to a proceeding that that officer is currently hearing or is a matter they are yet to hand down a decision on. The minister may wish to comment on those matters that I have raised if he is intending to sum up at the conclusion of the second-reading debate of this bill.
There have also been some concerns raised about the requirement to undergo medical examinations. This is particularly under clauses 29, 30, 57 and 58. Those clauses have raised differences of opinion. Some argue they are necessary to maintain integrity in the justice system, while others argue that they undermine human rights and should be more focused on the impairment of an officer to carry out their duties by requiring evidence of such impact on the performance of the officer beforehand and not focused on the actual illness or disability but on the effect on performance. Some have raised with us that this is not necessarily very clear in those clauses.
As I mentioned earlier, under clause 97 there is the power to stand down certain judicial officers or non-judicial members of the Victorian Civil and Administrative Tribunal (VCAT) by the principal head of jurisdiction. As I mentioned, it is not clear. It is probably implied that there will be circumstances where this is warranted, but it could also be argued that it may be sufficient for an officer to be merely allocated to other duties. It should be ensured that it is clear in the bill that that is an option — and probably a preferred option in many cases.
The other part of the bill I want to speak about was also raised by Mr Rich-Phillips in his contribution, and that is division 5 of part 11. I suppose it establishes the powers for the heads of jurisdiction, but as Mr Rich-Phillips said, I think everybody already assumed that the heads of jurisdictions had those powers and certainly that heads of jurisdictions were managing their courts.
Division 5 of part 11 explicitly confers on the heads of jurisdiction the management of their particular courts and VCAT. It has been raised with us by the legal fraternity whether the wording of those particular clauses in division 5 open up, for the good management of the court, the idea of, for example, conducting drug and alcohol testing of the judiciary. I have spoken many times on this in Parliament. Some say that in order to make sure people are not taking alcohol or drugs we need to be running around testing them in workplaces. If it does raise itself as a problem, there are many ways of dealing with this without using alcohol and drug testing. I think it would be a very unfortunate set of circumstances if drug and alcohol testing were to be introduced into the judiciary and Parliament.
Mr Rich-Phillips described as silly — I would say they were ill-advised and unfortunate — promises made by the Premier about the introduction of this type of testing to the judiciary and the Parliament. I am glad that the government has stepped back from that. I presume that the clauses in division 5 of part 11 are just there to make very clear the role of the heads of jurisdiction but not to include that particular issue.
We are pleased to see the establishment of the Judicial Commission of Victoria. There are a couple of concerns I raised about some of the issues that have been raised with us, but in general I think this is a good bill, and we will be supporting it.