THE VICTORIAN Nationals argue the proposed Bill “comes on top of mistakes made by this government”, while the Liberals have “substantial concerns about [its] principle aspect”. Last week, the Victorian judiciary’s most contested and fiery issue again came to the fore — that of acting judges.
In the second reading of the Court Legislation (Judicial Appointments and Other Amendments) Bill in the Victorian Legislative Assembly last week, the State’s shadow Attorney-General Andrew McIntosh said the Opposition had considerable concerns about the principle of the Bill, which is about the appointment of acting judges.
This widely contested issue hit the State last week, having been resumed from November last year. It passed all stages of the State’s Legislative Assembly, and with what Lawyers Weekly sources have described as its “huge majority”, “Labor rammed it through”. On March 22 this year, the Bill is expected to pass through the Legislative Council, also due to the Government’s majority, say sources.
In his dismissal of the necessity of this element of the Bill, McIntosh said last week that “there is a provision for the appointment of acting judges in both courts [Supreme and County] in two limited circumstances”. If there is a temporary absence of a judge for illness or other, a person can be appointed as an acting judge for up to six months. As well, if there is a short-term issue in relation to the business of the court, the A-G has the responsibility to appoint an acting judge at the request of the Court.
A leading national judicial body, the Judicial Conference of Australia (JCA) decried the proposed Bill late last year, arguing that there is “a substantial body of opinion” in the Australian judiciary that the notion of acting judges is inconsistent with the principle of judicial independence.
This is something the Government has announced, said McIntosh, “and I do not think I can name a single lawyer in this State who would be in favour of this system”. He referred to the Victorian Bar Council, which he said has “come out roundly against the idea”.
But Greens MP Bruce Mildenhall last week replied that the fundamental problem with the argument being put forward by the conservative parties is that they fail to demonstrate why the propositions outlined in this Bill are less respectful of the principles of judicial independence than the current system.
Acknowledging provisions for acting judges currently in the Supreme Court whose term of appointment is limited to six months at a time, Mildenhall said the proposed five year appointment takes this outside the electoral cycle. “If an Attorney-General or a government or anyone wanted to get at a judge politically, it would be far easier to exploit a six-month appointment provision than a five-year appointment provision which is clearly outside the electoral cycle.”
As well, said Mildenhall, “it is a bit rich to get a lecture on the concept of judicial independence from the other side of the house”. He referred to the Kennett years when, he said, we saw the sacking of the Accident Compensation Commission judges and the “ferocious intimidation of quasi-judicial figures” like the Director of Public Prosecutions, the Children’s Court Senior Magistrate, Greg Levine, and a number of other independent office-holders.
But Ross Ray QC, Chairman of the Victorian Bar, said last week that “it is now clear that judicial opposition to the Attorney-General’s proposal for acting judges is unanimous. This is because it fundamentally offends the principle of judicial independence”.
“The Attorney-General has circulated draft guidelines for the appointment of acting judicial officers. However, no guidelines can cure the fundamental flaw identified by Justice [Ronald] Sackville. The power conferred on the Executive by this Bill ‘is objectionable in principle as it threatens the constitutional independence of the Supreme Court and of other Victorian Courts’,” said Ray.
Labor MP and Parliamentary Secretary for Education, Liz Beattie, said the Bill is about a court system that meets the needs of the 21st century. “It is about looking at the courts and their practices to improve consistency in the use and appointment of acting judges,” she said.
Beattie assured the house that judicial independence will be preserved, as has been done “time and time again” upon attacks from the opposite sides of the house, she said. “We will defend the court system, and we will not let them be subject to the threats, harassment and intimidation that we see constantly from the other side of the house. I ask the Opposition to have a lunch break and instead of doing the numbers, it should wake up to itself and support this Bill.”
“The Bill consolidates the offices of acting judge and reserve judge and revamps the office of acting magistrate to create a uniform suite of legislation for acting judicial officers across the Supreme, County and Magistrates Court,” she said.