Law closing in on judges over conduct
Federal judges would be overseen by a new agency that could investigate allegations of corruption and other misconduct — including sexual harassment and bullying — under plans being drawn up by the Morrison government.
Attorney-General Christian Porter has sought legal advice on the design of a judicial complaints agency, and is expected to move ahead with its establishment once legislation is in place for a commonwealth integrity commission that would probe corruption in the rest of the public service.
The Rudd government sought to establish a similar body but settled for a system that allowed a chief judge to investigate complaints after concerns were raised about whether an independent agency would be constitutional.
The disclosure of sexual harassment allegations against former High Court judge Dyson Heydon and bullying allegations levelled at other federal judges have intensified pressure for a federal judicial oversight body.
Mr Porter told The Australian: “If you are creating a body that is powerful and able to look into all other parts of the public sector, the question arises: ‘What about this part of the public sector?’ ”
Draft laws to establish an integrity commission that will have the power to investigate corruption by elected officials, federal law enforcement and bureaucrats, but not judicial officers, are the subject of public consultation.
Mr Porter said judges were a “special part” of the public service and any oversight body should not jeopardise their independence.
Mr Porter said he believed a body similar in design to the NSW Judicial Commission, which handles a broad range of complaints about sexual harassment, other misconduct and capacity issues, would be constitutional. “I think the NSW judicial commission is a relatively sound model and a body that’s operated in practice in a way that appears efficient and sensible,” he said.
“I’ve received a number of pieces of advice responding to slightly different concepts and models and questions … I think something like that is constitutionally sustainable.”
The Judicial Conference of Australia, the Law Council of Australia and Labor have all backed the creation of a body that could handle complaints about federal judges to shore up public confidence in the judiciary.
However, Mr Porter said he was “inclined to try to deal with one issue at a time”.
The commonwealth integrity commission was his “first order of business” and a federal judicial commission was a “a related and second order of business”.
Labor’s legal affairs spokesman Mark Dreyfus has previously described the Coalition’s model for an integrity commission as flawed because its power to conduct public hearings will be limited to agencies with law-enforcement powers, including the Australian Federal Police, the Australian Taxation Office and the Australian Competition & Consumer Commission.
Elected officials and other public servants will not be the subject of public hearings.
Mr Porter said the government was open to improving the bill — submissions on its design are due today — but the Coalition would be unlikely to change its core design.
“There will be improvement that can be made, there will be changes — that’s the point of a public consultation,” Mr Porter said. “It is very unlikely that the core principles that we took to a full election, totally transparently, in great detail, would be substantially changed in this process,”
Mr Porter will also return to a long-running row with the class action industry, warning that law firms and litigation funders face tougher laws to ensure more damages flowed to people who have suffered harm.
He said his aim was to ensure more money was returned to “human beings who had been wronged” rather than to lawyers and equity investors who funded litigation in exchange for a cut of the payouts to plaintiffs.
“The class action industry at the moment is under-supervised and under-regulated, to the disadvantage of the people that it is meant to help, which is the litigants,” Mr Porter said. “My view is that the balance, in terms of the returns to the big equity investors, is disproportionate and more money should go to the members of the class.”
Mr Porter said he was considering the recommendations of a parliamentary inquiry that recommended a cap on fees, permanent changes to continuous disclosure laws and further licensing requirements.
“The fundamental issue is: why is the returns to the lawyers and to the equity investors, many of which are operating out of the Cayman Islands, so high, at the expense of the returns to the people they’re supposed to represent,” Mr Porter said.
That report, released in December, recommended the government investigate the best way to implement a threshold where litigation funders guarantee a minimum return of at least 70 per cent of gross proceeds to class action members.
Labor, in a dissenting report, said subjecting class actions to those rules would increase plaintiffs costs and it did not support several recommendations.
Mr Porter said he expected legislation merging the Family Court and Federal Circuit Court to be another priority and to pass in the first half of the year despite strong opposition from lawyers.