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Judicial complaints face new scrutiny

Bringing men and women in wigs into account has become the end-game for a host of politicians and legal representative bodies in recent years. Now, finally, they are getting somewhere.

user iconThe New Lawyer 23 February 2010 The Bar
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BRINGING men and women in wigs into account has become the end-game for a host of politicians and legal representative bodies in recent years. Now, finally, they are getting somewhere. 

A federal Labor politician has now made his mark on the cause, introducing a Private Members Bill to fill what he says is a vacuum in the law when it comes to dealing with complaints against judges. 


The Hon. Duncan Kerr SC said the Bill is set to create a fair process when Parliament is called on.

The Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill 2010 aims to give some certainty to Parliament when considering rare cases of judicial impropriety. 

“Serious allegations were made against Justice Kirby during his term on the bench—and but for their quick disproof Parliament would not have been ready to deal with that controversy. 

"It would be the same now if concerns arose about a federal justice with a long history of failing to submit tax returns, falling asleep regularly or suffering failing mental health if that judge or magistrate refused well intentioned requests to retire,” Kerr said.

He said the case of Justice Lionel Murphy in the early 1980s first highlighted the need for there to be a clear and consistent method for dealing with any alleged misconduct by federal judges. 

“This Bill and proposed changes to Standing Orders fill a hole in the legal system where the law is silent,” Kerr said.

The Bill applies to any of the 145 judges now serving on any of the four Federal courts – the High Court, Federal Court, Federal Magistrates Court and Family Court – as well as any judges that would be created within a new Military Court.  

Any MP bringing frivolous or malicious baseless accusations against a judge will be guilty of serious contempt of Parliament. 

A motion seeking the removal of a judge would have to set out specific allegations. Those allegations would then be sent to an independent Parliamentary Commission for investigation and report back to the Parliament. The House and the Senate would retain their exclusive constitutional powers. It will remain open to the Parliament to accept or reject any recommendation for the removal of a justice.

Kerr said these are issues that demanded clear thinking and certainty, "not a head in the sand".

“We all hope it will be rare where Parliament must consider having to make decisions to remove a judge or magistrate – but it is short term  thinking to wish the possibility away. It is sensible to decide in advance how those matters will be dealt with so that there can be no suggestion that the process is biased for or against the interests of any particular justice.


“This Bill is not about transferring powers or lording parliamentary power over the judiciary – it simply aims to establish a clear and fair path to give effect to s72 of the constitution.

Kerr said would be seeking the support of the Attorney General, the Opposition and crossbenches to pass the bill in coming Parliamentary session.


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