February 15, 2013  |  Second reading speech

Courts Legislation Amendment (Reserve Judicial Officers) Bill 2012

It gives me great pleasure to also make a contribution on the Courts Legislation Amendment (Reserve Judicial Officers) Bill 2012. It is also  a pleasure to follow the previous speaker, the member for Evelyn.  As many members would be aware, it was my predecessor in the seat of Niddrie, Rob Hulls, who  put  through these reforms in 2005. I do  take  exception to the work of my predecessor being called ‘sloppy’; I do not think it  was sloppy at all. I think he was a very reformist Attorney-General  who  deserves praise for what he tried to do then, and I must say that I also agree with what the current government is trying  to do today. Essentially this legislation will  assist with backlogs and the temporary increases that are being seen in our court system.

It was the Attorney-General in  the previous government who created the position of acting  judicial  officer, and the  legislation before us  today  creates the position of reserve judicial officer. These titles  may appear very similar  but there is a difference in what these roles will entail.

Under the old system, virtually any practising lawyer with sufficient experience could be appointed to become a reserve judge. Under  the new system it will be a retired judge who will be appointed to the position  of reserve  judge. We  will not oppose this, but there are some amendments  that I will talk about, which we will seek to make in the upper house.

By way of some brief  background, reserve judges — that is, judges appointed on a  short-term or  a sessional basis — have been used  in Victoria  for decades. This is not something new. However, up until  2005 few appointments were made in this area  and  all  had  come  from  the ranks  of retired  judges. The  Bracks government  widened  that  pool. Under  the  Bracks  government  reforms  people eligible for appointment as reserve judges could come from a wider  pool — that is, they could be drawn from barristers, solicitors and judges  from interstate. It is perhaps fair to say that the reforms were not altogether popular.

I understand the Chief Justice of the  Supreme  Court  made  some criticisms and took a stand that no acting judge would be appointed to the Supreme Court.

The  bill  will  have  a  successful  passage through this house. It  will  make substantial  amendments  to  a  raft  of  justice   legislation,  including  the Constitution Act 1975, the Supreme  Court  Act  1986, the County Court Act 1958, the Magistrates’ Court Act 1989 and the Children,  Youth  and Families Act 2005. Essentially, though, the amendments in this legislation  will narrow the pool of candidates from  which reserve judges can be drawn. However — and  this is  the thrust of the legislation that  we believe  will help  the judicial system — by providing the offices of reserve  judge  and  reserve magistrate we hope it will assist in reducing large backlogs and casework. I  noticed  recently in the news that Chief Justice Marilyn Warren had said that the average  clearance  rate  in all trials and appeals in 2011-12 had jumped 10 per cent  from the previous year to 116 per cent.

I  did a little  bit  of  research on this  legislation  and found that when  my predecessor introduced the  previous bill he did so  at a time when there  was a very  significant  case  backlog.  In  fact  the report  on  government services produced by the Productivity  Commission around that time,  in 2007, said  there were 1094 County Court criminal appeals and 2467 other criminal cases waiting to be heard. That was a massive increase on the 510 appeals and 1722 other cases on the waiting lists in 2003. So what the former Attorney-General was attempting to do was to put in place a system  to make the justice system  operate efficiently and  effectively  and  get through its cases more efficiently. As the member for Evelyn said, going to court is not  an easy  process. If  anything, you actually want the case over and done with.

I now turn to some of the terms and conditions that the appointment process will involve. A reserve judge or magistrate will have the same powers,  jurisdiction, immunities and protections as a judge or magistrate of the relevant court.

A  reserve judge  may serve on a full-time or sessional basis. The reserve judge may not serve as the chief judge of their court, but there is a position for the reserve  judge  to act on the Court  of Appeal. I will say  a bit more about the Court of Appeal later on. The appointments are for a term of five years or until the person reaches the age of 75. Reserve judges can only be removed in the same manner as  other  judges  —  that is, by Parliament. The bill prohibits reserve judges from engaging in other paid  work  for  the duration of their employment, except with  the approval of  the Attorney-General. The opposition believes that giving  the  Attorney-General  that sort of power is a significant flaw  in  the legislation.

When Labor  was  introducing its  reforms in  2005, there  was a  view that  the reforms  could undermine  judicial  independence — that  is, that a  practising lawyer  appointed  as  an   acting  judge  might  feel   pressure  to  win   the Attorney-General’s support in the hope of receiving a permanent appointment.

I did some research  and saw that at that time the now Attorney-General, who was then the  opposition legal affairs  spokesperson, wrote an opinion  piece in the Australian of 30  May 2008 entitled  ‘Rob  Hulls risks putting  Victorian acting judges in a bind’. He said:

  Any such  judge  appointed  on an acting basis is unavoidably dependent on the  favour of the Attorney-General of the day if he or she hopes to be reappointed  when his or her term expires.
 

Essentially for all  the government’s criticism of the previous government, this bill, in  many respects,  retains the same system in regard to acting judges who do not have  tenure,  but it narrows  the  pool from which those  judges  can be drawn.

From the departmental briefing  I understand the thrust  of this legislation was agreed to and that it was  very much a similar piece of legislation with similar reforms to legislation that was  passed  in  2005.  In  2005  a senior barrister relying on the government for reappointment could  perhaps be criticised for not being independent enough. But what is the difference between that situation  and a former judge who is relying on the government for reappointment?

The  risk  of  partiality  by  acting  judges,  who  are esteemed members of the community, I agree is remote, but essentially it is  still  present  under  this legislation.  In fact under this  bill reserve judges  can  be reappointed after their term expires. This seems  to  raise  the same alleged conflict of interest issue  that was raised by the opposition in  2005.  If  a  practising  barrister acting as  a  judge  favours  the  government  in  order  to  gain  a  permanent appointment,  why  is the same not true of a retired judge seeking reappointment as an acting judge?

Despite  the Attorney-General’s  strong  views of  the  period  overseen  by  my predecessor, the former member for Niddrie who was the then Attorney-General, we believe the instance of any undermining of any judicial wrong was  minimal.  The only  real change this bill  brings in is to limit  the pool of candidates.  The retirement  age  for judges will be 75 years  of  age and there will be a  small pool.

For   all  of  the  government’s  strong  viewpoints  —  the  policy  that  the Attorney-General took  to the last  election was to abolish  Labor’s practice of appointing  acting judges —  if anything the  legislation  could have contained more reforms.

Before I conclude I want  to make a remark about the Court  of Appeal. Under the previous system there  was no  express provision for acting judges to sit on the Court of  Appeal, although the  previous  legislation did not  prohibit it. This bill expressly authorises  the  appointment of reserve  judges to the  Court  of Appeal. In this sense the government is actually extending the importance, power and responsibility of  judges  without tenure  by  expressly permitting them  to serve on the state’s  highest court to hear the  most contentious cases. I am of the  view this  suggests  that  the legislation  is  not  really about  judicial independence but about the government of the day trying to stamp its mark on the legacy of my predecessor in this area.

This bill  also gives the Attorney-General the power to authorise reserve judges to be able to continue  with  paid work outside the court.  It is odd that in  a bill  that  purports to  reinforce  the independence of  the  judiciary such  an additional power is  given to  a politician.  The power is an important one. The Attorney-General will be  able to decide  whether  a candidate’s appointment  is compatible  with  their existing work  or whether it is  inappropriate. In other words, the power to determine how much money a reserve judge can  earn is vested in the Attorney-General. I do not think that is  appropriate.  If the government were  serious about judicial independence, it would not give this power  to  the Attorney-General. It should look at ways in which that power could be  vested in people such  as the  Chief Judge  of the  County Court,  the Chief Magistrate or someone  within  the  legal system.  A  government  supposedly  concerned  about judicial independence should have no problem supporting a move  to separate this authority from politics by putting it in the hands of the senior judiciary.

Labor will move  an  amendment proposing  an  alternative method  for  approving requests from judges to continue to work outside the court. This recognises that in some circumstances it might be appropriate for a judge to engage in paid work other than their  work as  a reserve  judge. Labor’s  proposal will not give the Attorney-General the  power to make that  choice. Rather, the  choice  would lie with a  relevant head  of the  jurisdiction — the Chief Justice of the  Supreme Court, the Chief Judge of the County Court or the Chief Magistrate.