Yesterday (Tuesday, 17 January), Attorney-General Mark Dreyfus KC (pictured) released a discussion paper for the establishment of a federal judicial commission, which the Albanese government last year offered in-principle support to and promised to scope options for in its budget late last year.

The new judicial watchdog is being considered on the back of the Australian Law Reform Commission’s report, Without Fear or Favour: Judicial Impartiality and the Law on Bias, which recommended — among other things — the establishment of such a commission, the development of a more transparent process for appointing federal judicial officers on merit, and the collection and reporting of statistics on judicial diversity.

“A federal judicial commission would provide a transparent and independent mechanism to consider litigants’, lawyers’, and witnesses’ concerns about issues of judicial behaviour or impairment giving rise to an apprehension of bias,” the report argued at the time of its release in August of last year.

“The fact that a judicial commission would be independent from the courts would, to an extent, address perceived conflicts of interest in the current system under which the judge or court the subject of a bias allegation is required to consider and respond to the allegation.”

Following on from the existing state and territory bodies in Australia (only Queensland and Western Australia do not have such watchdogs), as well as various international models, an independent federal body “could enhance public confidence in how complaints are handled and the broader administration of justice, while protecting the institutional integrity of the courts”, the paper posited.

What is being considered

In the discussion paper, the Attorney-General’s Department noted that the government has not yet made any decisions on the merits and policy of a federal judicial commission and that feedback from key stakeholders will inform any eventual decision.

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“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 paper noted.

Chief among those considerations for a potential judicial watchdog is whether it should be empowered to examine complaints about a justice of the High Court, in addition to other federal judges, and also complaints about former judicial officers.

Moreover, the government is seeking input on whether or not the commission should be empowered to examine complaints that could justify a judicial officer’s removal by the Governor-General.

In determining whether or not federal judges should be removed, the paper points out that “security of tenure is an important safeguard” of judicial independence, and referenced s72 of the Constitution as the only means by which such judicial officers can be removed.

“This high threshold for removal from office is to ensure that judges are free from political interference,” the paper pointed out.

Each federal court has its own idiosyncratic frameworks and legislation to navigate complaints made, the paper went on, and while — as the ALRC noted in its 2022 report — there is generally a high degree of public confidence in the nation’s judges, there are “concerns that current complaints-handling mechanisms are not independent from the judicial hierarchy, and lack transparency in the processes for considering and addressing complaints”.

Features of a proposed watchdog

If established, the paper outlined, the federal judicial commission would be a “protective, rather than a disciplinary, model”, in that it would preserve and support the institutional integrity of the federal courts by providing an independent and transparent complaints process.

It could “potentially be authorised” to examine complaints about current serving judges of the High Court, Federal Court, and Federal Circuit and Family Court.

Further to advocacy from the Law Council of Australia (LCA) about investigation scope, the paper noted that inquiries to determine whether institutional responses by a court are required to prevent future conduct and protect public confidence in the judiciary may be included.

However, the paper added, the LCA has also flagged that the inclusion of High Court justices in such a commission’s scope may result in objections.

“In particular, this may arise due to the potential for the High Court to adjudicate a matter related to one of its justices (such as an application for judicial review of a decision of the commission) or due to concerns about the potential for judges of a lower court to scrutinise the conduct of a High Court justice,” the paper noted, referencing LCA’s Principles Underpinning and Federal Judicial Commission policy statement from 2020.

A ‘very positive step forward’

LCA president Luke Murphy welcomed the opportunity to offer feedback on a model and features of the proposed watchdog, calling the release of the discussion paper a “very positive step forward”.

“We have been calling for a standalone federal judicial commission since 2006, because we believe having a means to fairly address complaints about the judiciary is essential to the promotion of the rule of law,” he said.

“While we will be considering and responding to each of the questions raised in the discussion paper, the Law Council has already established a number of principles it believes should underpin a federal judicial commission.”

LCA has previously called for a federal judicial commission to be underpinned by four pillars: independence, coherence, accessibility and transparency.

“We are very pleased that both the federal judicial commission and National Anti-Corruption Commission are being progressed,” Mr Murphy said.

“It is our very strong view that the federal judicial commission should be established at arm’s length from the executive government and separate from the NACC.”

“The final commission model must be endorsed by the federal judiciary and adequately resourced to carry out its remit, which should include the fair and impartial handling of allegations of lack of competency, serious misconduct or corruption within the federal judiciary, as well as providing training, education and support to judicial officers.”

Moreover, Mr Murphy added, the watchdog must consider appointing persons from significantly underrepresented groups, including First Nations people and people with disability.