A-G overturns Bryant’s idea on handling unhappy litigants (The Australian, Michael Pelly, 29th January 2010)
FAMILY Court Chief Justice Diana Bryant can claim some experience in dealing with disgruntled litigants.
She says, the court handles ‘‘the cases where no one is going to be particularly happy’’. Yet her latest idea—an ‘‘oversight committee’’ to review the court’s handling of complaints— has been put on hold. The idea earned praise from a Senate committee on judges, but Bryant said yesterday that without the Federal Court coming on board there was little point. ‘‘I don’t think we should do it independently,’’ she said. ‘‘Either we do it together or it’s imposed together.’’ She said Attorney-General Robert McClelland also wanted to pursue a more formal mechanism for all federal judges.
‘‘I do understand why he wants to have some external scrutiny to provide a bit of transparency for the public,’’ Bryant said. ‘‘My only caveat on this is that there be the same process for all the federal courts.’’ For almost two years, McClelland has been arguing for a national body to handle all judicial complaints. But NSW is quite happy with its own Judicial Commission and the others seem intent on keeping such issues on home turf. His fallback position is the introduction of a national framework, but there’s every chance the issue will become another victim of the Standing Committee of Attorneys-General — a place where elephants go to die. So it came as a surprise when the A-G told a judge’s conference in Canberra on Tuesday that ‘‘momentum for reform in this area is growing’’. ‘‘Despite the transparency and public scrutiny present in the appeals process,’’ he said, ‘‘there is insufficient transparency in the way that complaints about federal judges are dealt with, particularly for matters where the substance of the complaint does not give rise to an appeal,” he said. But that doesn’t mean he cannot move things along in commonwealth courts, which makes his recent discussions with Labour Member of Parliament Duncan Kerr a bit more interesting.
Mr Kerr, a long-time proponent of a federal complaints commission, resigned recently as a parliamentary secretary ahead of his retirement at the next election. He introduced a private member’s bill in the previous parliament but it foundered without support from the Howard government. He vowed this week to revive his push for a parliamentary commission to advise on complaints against federal judicial officers. Pressed on whether he would try again from the back bench, Mr Kerr would only offer: ‘‘Watch this space’’.
Under the Constitution, federal judges can be dismissed only by parliament for ‘‘proved misbehaviour’’ or ‘‘incapacity’’. This has never happened, even though a commission of inquiry was proposed to investigate former High Court judge Lionel Murphy in 1986. It was abandoned when he revealed he was dying of cancer. If a judge is becoming problematic, what usually occurs is that the chief justice will quietly convince that judge that he or she is not suited to life on the bench. The usual course in these circumstances is that a judge will resign rather than face the ignominy of having his or her career put on trial. Such was the case with Sydney’s sleeping judge, Ian Dodd, who resigned on medical grounds in 2005. Justice Bryant said she was ‘‘not entirely comfortable’’ with handling complaints and she was ‘‘absolutely’’ in favour of a NSW style commission ‘‘because the responsibility is removed from the chief justice’’. ‘‘Fortunately, I haven’t had to deal with conduct that has caused meany concern, but if I did, it would be nice to have some other process,’’ she said. One problem was that she had no disciplinary powers, only ‘‘remedial persuasive powers’’. Justice Bryant said a national body was ‘‘desirable, but a long way off’’, citing strong opposition from the Council of Chief Justices, which includes the heads of all superior courts in Australia. She said the overwhelming view was that there should not be a national judicial commission, although ‘‘not all of the federal courts thought it was a good idea’’. Given Justice Bryant and Chief Magistrate John Pascoe are on the same page, that leaves Federal Court judge Michael Black and High Court Chief Justice Robert French, who is chairman of the council. Justice Black, who steps down in March, played the ‘‘trouble with the constitution’’ card when asked yesterday whether he supported an independent body to review complaints for federal judges. He was referring to the view that the Constitution has only delegated power over federal judges to the parliament and could not delegate that to judicial commission. Hence Mr Kerr’s idea for a parliamentary panel to advise on whether there was ‘‘proved misbehaviour’’ or ‘‘incapacity’’ that warranted dismissal. Justice Black said he had ‘‘consistently urged’’ that the matter be referred to the Australian Law Reform Commission. MrKerr believes the clock is ticking. Given the increasing numbers of federal judges, he said it was only a matter of time before there was a serious complaint worthy of investigation.
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