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A Judicial Commission for Queensland?

The concept of a judicial commission in Queensland has done the rounds, and more than once.

It has usually surfaced when there has been an outcry about judicial appointments becoming politicised or when sentencing in high-profile criminal cases is labelled as being out of step with ‘public expectations’.

Realistically, neither of these are the best reasons to invest in a judicial commission, which is simply to strengthen the institution of the courts. Doing so has myriad benefits, including supporting the rule of law, maintaining the independence of the judicial branch of government and improving public confidence by the arm’s length handling of complaints.

So what is the current state of play?

In the 2020 Call to Parties1 statement for the Queensland state election, Queensland Law Society said:

Preservation of a strong and independent judiciary is essential to maintaining public confidence in the administration of justice and the promotion of the separation of powers. A judicial commission will enhance openness, transparency and independence of the judicial system.

QLS calls for a commitment to the establishment of a judicial commission, initially to:

76. Organise and supervise an appropriate scheme of continuing education and training, including Aboriginal and Torres Strait Islander cultural capability training of judicial officers. The commission should also be responsible for considering ways to increase the number of Aboriginal and Torres Strait Islander judicial officers across the State.

77. Examine complaints against judicial officers, including delays in delivering judgments and inappropriate or unreasonable conduct directed towards workers or persons appearing before the officer.”

In response, the Palaszczuk Labor Government2 advised:

Judicial Commission

76 & 77.

As was stated in the Palaszczuk Government’s call to parties responses the QLS prior to the 2015 and 2017 elections, Labor recognises that, whilst courts should exercise their powers independently of the other arms of government, it is the role of executive government to appoint the judiciary. This arises from the duty of the executive to promote the rule of law through the appointment of a highly skilled and independent judiciary.

The Palaszczuk Government firmly believes in the separation of powers, the independence of the judiciary and judicial accountability. In examining options for a Judicial Commission for Queensland, it is noted the only other jurisdiction with a judicial commission in Australia that has the dual functions of complaints management and continuing judicial education is New South Wales (NSW). The NSW Judicial Commission in the 2018-19 year received $8.013m in funding, up from $6.609M in 2017-18. This is a significant amount of taxpayers’ funds to spend on a framework in difficult financial COVID-19 times, particularly when there are existing processes in place.

A re-elected Palaszczuk Government commits to consulting further with the Chief Justice, the QLS and the Bar Association of Queensland on the issue of whether there is a need for a judicial commission in Queensland and what models, if any, may be suitable for Queensland, in the context of the cost of each proposed model.

The Palaszczuk Government remains firmly of the view that appointments to the judiciary must remain the prerogative of the executive government. A re-elected Palaszczuk Government commits to the continued appointment of judicial officers as outlined in the Protocol for Judicial Appointments in Queensland. Now is not the time to revert back to the secret appointments processes the LNP used when last in government.”

As an election commitment and with renewed focus recently on judicial appointments, it may be timely to consider what a Judicial Commission with Queensland characteristics may look like.

What could a Queensland Judicial Commission do?

Judicial Commissions or similar bodies are implemented in a number of jurisdictions in Australia and internationally and there is no one model for what functions they undertake or how they are composed. The following model is one interpretation of what could be.

Potential model for a Queensland Judicial Commission

Functions

A Judicial Commission could be formed to meet the following functions:

  • design a list of attributes for suitable candidates for judicial office
  • solicit applications for suitable individuals to be recommended to the Attorney-General for appointment as judicial officers, QCAT senior members and quasi-judicial members of other commissions or tribunals
  • receive complaints, investigate and recommend outcomes in response to incidents of inappropriate judicial or QCAT senior member behaviour
  • prepare and implement programs for the continuing education and training of judicial officers
  • maintain a confidential assistance program to support judicial officers and QCAT senior members with physical and mental health challenges
  • Advise government on improving the efficiency of the administration of justice.

In meeting these functions, a Judicial Commission should be guided by the following principles:

  • ensuring the separation of powers in Queensland
  • ensuring the maintenance of the independence of the judiciary
  • ensuring the integrity of the judicial branch of government
  • maintaining the effective use of public moneys.

Statutory foundation

In order to meet its functions and objectives, a Judicial Commission should be created by a statute of Parliament and be an independent statutory authority, within the broader portfolio responsibilities of the Attorney-General.

To safeguard independence, a Judicial Commission should be entrenched in Chapter 4 of the Constitution of Queensland 2001 and its role in the appointment of judges in section 59 and the removal from office for misbehaviour or incapacity in section 61, made explicit.

The statutory basis for a Judicial Commission should include a statutory confidentiality requirement for matters related to the handling of applications for appointment and the handling of disciplinary matters prior to a finding of fault. It is also envisaged there would be a statutory exclusion from the Right to Information regime for the appointment and disciplinary proceedings of the commission to support that confidentiality.

Composition

A Judicial Commission could be comprised of nine members, including:

  • The Chief Justice or nominee Supreme Court Justice as Chair
  • The Chief Judge or nominee District Court Judge
  • The Chief Magistrate or nominee Magistrate
  • President of the Queensland Civil and Administrative Tribunal
  • The Queensland Attorney-General or their nominee
  • The Queensland Shadow Attorney-General or their nominee
  • The President of the Queensland Law Society or their nominee
  • The President of the Bar Association of Queensland or their nominee
  • One lay member appointed by the Governor-in-Council.

Appointments function

The appointments function of a Judicial Commission could be triggered upon advice of a vacancy from the head of jurisdiction or advice from the Attorney-General of the creation of an additional role for judicial office or QCAT senior member role, or the replacement of a judicial officer or member.

Upon receiving this advice, a Judicial Commission could:

  • advertise each vacancy, including details of likely location, required circuits, and
  • receive applications and assess for statutory qualification and suitability based on the list of attributes designed by the Judicial Commission.

Applications for any particular vacancy could be considered by an appointment panel derived from relevant Judicial Commission members, comprising:

  • the head of the relevant jurisdiction, or their nominee
  • the Queensland Attorney-General or nominee
  • the Queensland Shadow Attorney-General or nominee
  • the President of the Queensland Law Society or nominee
  • the President of the Bar Association of Queensland or nominee
  • The lay member appointed by the Governor-in-Council.

The appointments panel could consider applications received and by consensus, or at least a two-third majority of members, prepare a list of five suitable candidates for each advertised vacancy, having regard to the list of attributes prepared by the committee as well as the diversity of the existing officers in that jurisdiction. The list of candidates would be provided to the Attorney-General to inform the decision of appointment.

Each year the Judicial Commission could publish details in its annual report of the number of vacancies handled, the number of suitable candidates proposed and the number of total appointments made from outside the lists prepared by the Judicial Commission.

Complaints function

Complaints about a judicial officer or QCAT senior member would be received and handled by a Judicial Commission.

The nature and scope of the complaints, together with who is captured, should be explicitly set out in the legislation. 

All complaints would be confidential and would only be accepted from an identified individual in writing. The identity of the complainant may not be disclosed to the judicial officer or QCAT senior member in circumstances where a complaint would relate to behaviour and come from a practising member of the legal profession. Data on anonymous complaints could also be collected, though those complaints would not be assessed.

Complaints would be initially assessed by Judicial Commission staff and any frivolous or vexatious complaints disregarded with the concurrence of the Chair of the commission and provided to all commission members for their information at the next regular meeting.

Complaints for action would be considered by the Judicial Commission for decision to:

  • refer the complaint to the Judicial Commission’s investigatory manager for investigation and report with recommendations
  • refer the complaint to the relevant head of jurisdiction for action
  • refer the complaint to law enforcement, if appropriate
  • take any other action resolved to be necessary such as make a recommendation to the head of jurisdiction that the judicial officer should be suspended while the matter is being investigated due to the nature of the complaint.

Investigatory complaints could be investigated under the coordination of an investigations manager with any specialist staffing needed seconded from the Crime and Corruption Commission or Queensland Police for the duration of the relevant investigation.

The commission could consider the report and recommendations of the investigations manager and decide to:

  • take no action as the complaint was not made out or lacked sufficient substance to warrant action
  • release the report to the relevant head of jurisdiction to action
  • refer the report to the Director of Public Prosecutions for laying of criminal charges
  • refer the report to the Clerk of the Parliament for consideration of the Parliament for removal from office for misbehaviour or incapacity under section 61 of the Constitution
  • take any other action in the public interest.

A Judicial Commission could also maintain a public register of disciplinary matters and may decide to publish either a de-identified or identified (if the circumstances warrant it) report of the matter and finding.

Education function

Education activities for the judiciary could be undertaken by officers of a Judicial Commission in cooperation with the heads of jurisdiction and existing judicial education bodies. It is envisaged that topics to be covered could include:

  • wellness, resilience and the impact of vicarious trauma
  • the risks and benefits of the use of current information technologies
  • cultural and linguistic considerations for First Nations peoples coming before the court.

Assistance function

A Judicial Commission could maintain a confidential assistance program to provide pastoral care and support to judicial officers dealing with physical or mental health issues impacting on their abilities to perform their roles.

It is envisaged this would include access to a confidential counselling service and structured intervention, adjustment and support facilities provided in concert with the head of jurisdiction.

Advice function

A Judicial Commission would collect valuable data on the impact of workloads on judicial officers and QCAT senior members that would be of significant benefit to strategic funding and resourcing decisions of government. It is envisaged a Judicial Commission could publish aggregate information to better inform justice impact analysis and ongoing budget planning.

This opinion article represents the views of its authors and does not necessarily represent the views of Queensland Law Society. Matthew Dunn is QLS Policy, Public Affairs and Governance General Manager. Kate Brodnik is a QLS Senior Policy Solicitor.

Footnotes
1 qls.com.au/Content-Collections/Statements/QLS-call-to-parties-QLD-State-Election.
2 qlsproctor.com.au/2020/10/call-to-parties-palaszczuk-labor-government-response.

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