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.