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Merits of national judiciary examined

Merits of national judiciary examined

A senate committee into Australia's judicial system and the role of judges has heard evidence from experts about plans for a national judiciary, changes to appointments and complaints about…

A senate committee into Australia's judicial system and the role of judges has heard evidence from experts about plans for a national judiciary, changes to appointments and complaints about judicial officers.

Justice Ruth McColl, president of the Judicial Conference of Australia, told the committee that a national judiciary, which would allow judges to sit in different jurisdictions around the country, is desirable but that legislation in each state and territory would be required.

She added that cross-fertilisation of judicial experience could provide many benefits.

"Just dealing with the substantive legal position, one's experience is always enhanced by the infusion of ideas from other jurisdictions, and so just the fact of sitting on various different courts would bring a benefit to the public in a form of indirect legal education," she said.

"For the courts, the obvious advantage to which I referred earlier is the immediate filling of holes when there is a shortage of judges."

When it came to the appointment of judges, Dr Andrew Lynch and Professor George Williams, directors of the Gilbert + Tobin Centre of Public Law, advocated the creation of a judicial appointments commission, although they emphasised that the final decision should remain with the executive.

Professor Williams said the commission could put forward recommendations to the attorney-general, which could ensure the process was transparent and would improve community confidence.

"In the past, attorneys of both sides of politics have used the word 'merit' - which is useful only in a very broad rhetorical sense. It really does not give us a strong indication of how the process works or the criteria that are applied," he said.

"One of the strong arguments, I believe, for a judicial appointments commission is to provide a formalised way to ensure that the community is involved. I would even consider [that] a majority on that body, perhaps, should be members of the community to emphasise the fact of who is being served."

The senate committee also questioned representatives about the possibility of an independent federal entity, which would examine complaints from the community about judges.

Chief Federal Magistrate John Pascoe of the Federal Magistrates Court advocated the idea to ensure complainants felt that matters were being dealt with objectively.

"Sometimes the view is expressed that the court receives the complaint about the court and does not deal with it in the same way that a truly external party would do," he said.

"I think it would be an opportunity, for example, to bring in a very experienced, retired judge and perhaps someone with other qualifications - psychology being one - that could give us some feedback from the complaints they see about what we could do by way of judicial education to perhaps remove some of the things that upset and irritate litigants and perhaps make them feel they have not been properly heard."

The Judicial Commission of New South Wales is an independent body already established that examines complaints, provides ongoing training and education for judicial officers and monitors sentencing.

Chief Executive Ernet Schmatt said the complaints function has worked well in NSW.

"It provides people who have a grievance with a place where they can take their grievance and it will be properly investigated by an independent body. It also protects judges from scurrilous complaints because, during that preliminary investigation stage, everything is dealt with in private so there is no harm done to the reputation of the judicial officer," he said.

He added that last financial year 66 complaints were received. There are approximately 300 judicial officers who deal with in excess of 500, 000 cases a year.

The Committee is due to report its findings on 17 August.

- Sarah Sharples

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