Mr Speaker,

The aim of this Bill is to amend the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 to do two things.  First, it will provide for the appointment of a Deputy Judicial Conduct Commissioner.  Second, it will provide that the Judicial Conduct Commissioner, in addition to the existing remedies that he may grant, may decide to take no further action on a complaint.

The Bill also amends the Judicature Act to raise the maximum number of Associate Judges who may hold office at any particular time from six to nine. 

As with much recent Justice sector-related legislation, such as the Child and Family Protection Bill which the House read a first time last night, this Bill originated under the Labour Government.  It was introduced on 25 June 2008, and read a first time and referred to the Justice and Electoral Committee on 22 July that year.  Having been carried forward into the current Parliament, the Committee reported on 18 May last year, and now the Bill comes back to the House. 

There is some irony in the fact that the Judicial Matters Bill is now sponsored by a National member, since Hansard shows that National opposed the Bill on its first reading.  National’s objection in opposition was set out by a member of its justice team, Dr Richard Worth.  Dr Worth thought that the Bill would do nothing to improve judicial productivity, and so was undesirable.

Of course, the primary purpose of creating the Conduct Commissioner is not to increase the throughput of reasons for judgment.  It is to maintain, and if possible to enhance, public confidence in the administration of justice.  There is every reason to suppose that under the able stewardship of David Gascoigne, the present holder of the Conduct Commissioner’s warrant, the office will fulfil its purpose. 

The Judicial Conduct Act established an office called the Judicial Conduct Commissioner, appointed by the Governor-General after consultation with the Chief Justice on the recommendation of the House of Representatives.
 
The Act sets out a process for the receipt and processing of all complaints against judges to be managed by the Judicial Conduct Commissioner.
When the Judicial Conduct Commissioner receives a complaint about judges, he may either dismiss the complaint (if it is outside jurisdiction or if the complaint is vexatious), he may pass the complaint to a judge superior to the one about whom the complaint was made, or he may appoint a Judicial Conduct Panel. This only happens in serious cases, where there is a possibility of the judge being dismissed.

The membership of a Judicial Conduct Panel - determined by the Attorney-General after consultation with the Chief Justice - can consist of the following persons: two judges (or a judge and a retired judge; or a sitting or retired judge and a practising lawyer); and a lay member.

The Bill now before us establishes the new office of Deputy Judicial Conduct Commissioner appointed by the Governor-General on the recommendation of the House of Representatives, after the House has been advised by the Attorney-General that the Attorney-General has consulted the Chief Justice on that recommendation.

Generally, the function of the Deputy Commissioner is to carry out the functions of the Commissioner in relation to complaints during the absence from office or the incapacity of the Commissioner or the vacancy in the office of the Commissioner.  It is probably sufficient to say that the operation of the legislation to date has demonstrated the need for the Deputy’s position, and the manner of appointment set out by the amendment seems appropriate.

The amendment Bill also gives the Conduct Commissioner a power to take no further action in respect of a complaint if satisfied that further consideration of the complaint would, in all the circumstances, be unjustified. (This is in addition to the three current powers: dismissing the complaint where it is outside the Commissioner’s jurisdiction or where it is vexatious; passing the complaint to a judge who is superior to the one who is subject to the complaint; setting up a Judicial Conduct Panel.)  Again, experience with the legislation to date indicates the desirability of the amendment.

Section 26C of the Judicature Act 1908 provides that the Governor-General may from time to time, by warrant, appoint fit and proper persons to be Associate Judges of the High Court.  Associate judges have a specialist civil jurisdiction and undertake a range of companies and insolvency work. They have extensive jurisdiction in interlocutory matters including summary judgment applications, and they have jurisdiction to assess damages.

Associate judges were formerly known as masters of the High Court and appointed for fixed terms.  From 20 May 2004, masters were renamed associate judges and began to serve on the basis of permanent tenure. The maximum number of Associate Judges is six, although part time Associate Judges may be appointed.  Clause 17 of the Bill increases the number of Associate Judges from six to nine.

The justice and electoral committee received one submission, from the Chief Justice, in support of the bill.  As is customary, her submission was made following consultation with the President of the Court of Appeal and the Chief High Court Judge.

One amendment was recommended by the committee.  As the committee notes in its report, new section 15A (inserted by clause 11 of the bill) would allow the Conduct Commissioner to take no further action in respect of a complaint on the grounds that further consideration of it would be unjustified.  Examples of situations where the Commissioner might decide that a complaint is unjustified include where the complaint has been resolved to the complainant’s satisfaction following an explanation by the Judge who is the subject of the complaint, or where the complaint, while genuine and made in good faith, is based on a misunderstanding. 

The Committee recommended inserting clause 12A to amend section 17(1) of the Principal Act to clarify that where the Commissioner has exercised his or her power to take no further action on a complaint, the Commissioner is not required to refer the complaint to the Head of Bench.  Because the Conduct Commissioner is not entitled to dismiss a complaint on the ground that further consideration of it would be unjustified, the Commissioner would arguably be required to refer such complaints to the relevant Head of Bench were it not for this recommended amendment. 

Mr Speaker, Labour continues to support the amendment, including the change recommended by the justice and electoral committee.  We do not know why it has taken the Attorney-General since May last year, when the committee reported, to prevail on his cabinet colleagues to allow him to bring this bill back to the House.  But we are pleased to see its return, and we look forward to its speedy enactment.