Judicial Commission of New South Wales - Establishment of The Commission

Establishment of The Commission

On 18 November 1986, Attorney General Terry Sheahan announced a number of reforms to the New South Wales justice system. Along with the creation of the commission, the government was to introduce a Director of Public Prosecutions, abolish the office of Clerk of the Peace, and give courts the sole control over the listing of criminal cases in the justice system. The justice system reforms were brought about following a series of controversies concerning judicial figures in Australia in 1985. That year saw a judge of the High Court of Australia and a judge of the District Court of New South Wales both charged and acquitted of charges of attempting to pervert the course of justice. The Chairmen of the Bench of Magistrates (now called Chief Magistrate), Murray Farquhar, was also to face charges. He was convicted of attempting to pervert the course of justice and served a prison sentence. In the Murphy case, the Australian Government enacted the Parliamentary Commission of Inquiry Act 1986 (Cth) to appoint a commission of inquiry to investigate the question of whether the judge should be removed from the High Court because of the lack of an established procedure. A similar situation arose in Queensland with a Supreme Court judge.

The commission’s purpose is to ensure that there is a proper independent process of dealing with misconduct claims against judicial officers and that this process was to be made more transparent. The commission was modeled on the Californian Commission on Judicial Performance. At the time of the establishment of the commission, the commission did not meet with universal approval. Judges resisted the first draft because of its removal the traditional role of parliament in removing a judicial officer. The initial proposal provided that the governor could remove a judge after the conduct division made a report. This was changed to the current situation where a report is made to parliament, which then decides whether to ask the governor to remove the judge concerned.

There were other concerns. Justice Malcolm McLelland of the Supreme Court said:

"the mere establishment of an official body with the express function of receiving complaints against judges as a first step in an official investigation renders judges vulnerable to a form of harassment and pressure of an unacceptable and dangerous kind, from which their constitutional position and the public interest require that they should be protected."

One District Court judge also predicted that there would be "a tidal wave of complaints against judges in criminal cases". Contrary to those expectations, the number of actual complaints is extremely low, and of those, very few are actually substantiated. As anticipated, most complaints have been of a trivial nature or have been made by the disgruntled losers of litigation. Most have been dealt with routinely and dismissed as having no merit. The number of complaints started as around 20 per year, peaked at 55 per year, and reduced back down to 30. The success of the commission is shown in that two investigations have actually resulted in one judicial officer resigning and in the other resulting in parliament considering the removal of another judicial officer.