Judges should be just as accountable as politicians

Senate on 18/09/2024

Legal and Constitutional Affairs References Committee

Senator RENNICK I was motivated to move this motion as a result of a friend who works in the legal industry—I had not heard from him in a long time—sending me a message a few weeks ago. It basically said that we needed a judicial commission. I was surprised that he sent me this. Within the next 24 hours, I had another friend also send me a text message with a link showing that the Queensland Law Society has long advocated for the establishment of an independent judicial commission in the state. I’ve had a number of people over the years come to me with various gripes about the legal industry, and it’s something on which I’ve said,: ‘Look, separation of powers—the judiciary is the judiciary. We’re in politics. We’re the parliament.’ But I think it’s time that we had serious consideration of how judges come to their decisions.

There’s a famous saying: ‘Who will guard the guardians?’ I know that throughout my time here, in estimates, we often ask the bureaucrats questions and we don’t really get satisfactory answers, but at least it’s a process where we can expose the workings of government and people can see them. It frustrates many of my followers, I know, but I do think that, by shining a light on the practices that occur, eventually we will seek to improve the level of quality assurance and service delivery and, hopefully, lift the standard of decision-making. It’s for that reason that I think we need to make the same decisions in regard to the judiciary.

I don’t pretend to be a legal expert by any means, but I know that, when I did my Master of Tax Law, I was often intrigued by some of the rulings that I just thought were totally irrational or dysfunctional and didn’t make a lot of sense. On a personal level, I’ve always been very frustrated by the Tasmanian dams decision, whereby Bob Hawke back in 1983 took the state of Tasmania to court—or was it the other way around, with Tasmania taking the federal government to court?—because the federal government wanted to use the foreign treaties power to override the plenary powers of the state government to control water in their state. The High Court ruled in favour of the federal government that time, but, if you ask me, I don’t think for a minute that our founding fathers, when they framed the Constitution and gave foreign treaty powers to the federal government, intended that 50 or 100 years later the federal government could sign a treaty with a foreign body and then overrule the state government, which has the plenary powers with water. It’s always intrigued me—well, it hasn’t intrigued me. It’s actually been a frustration of mine. In that case, I felt that was judicial activism. I don’t think the people of Australia would have wanted that, because it diminished the sovereignty of the states. Last week I tried to move a motion to look at reforming the roles and responsibilities of state and federal governments, but I think that is something that should be dealt with by the parliament; I don’t think it should be dealt with by activist judges.

Almost 40 years after that Franklin Dam decision, we had another bizarre ruling out of the High Court that also greatly frustrated me, and of course that was Palmer v Western Australia, where Clive Palmer took Western Australia to court over the fact that Western Australia had closed its borders. Section 92 of the Constitution clearly says we have free movement and free intercourse amongst the states. In the High Court ruling, the High Court judges relied on an obscure case from the late eighties to do with the sale of crayfish between South Australia and Tasmania. That also came under section 92, but it was the trade and commerce limb of section 92, not the free intercourse limb of section 92. In that case back in the eighties, Cole v Whitfield, the High Court ruled that Tasmania had rights to fisheries and responsibility for fisheries and could block South Australia from selling crayfish into Tasmania. That is fair enough. It is the role of state governments to control their fisheries. But comparing dead crayfish to the live movement of people is, to me, cherry-picking and a bridge too far. To somehow argue that the sale of crayfish could be a precedent for the movement of people among the states epitomises how the judges in this case did not really want to be activists; they just wanted to wash their hands of the whole thing. They just picked some obscure case and said, ‘Oh, look, here you go: we’re going to merge the limbs again. People, crayfish—what is the difference?’ Well, there happens to be a big difference because, as we saw, many people were unable to see their loved ones pass away. Mothers were unable to cross the borders to give birth. We had people sleeping in cars and tents and whatever rendered homeless because they could not return to their home states.

These judges need to be held accountable for their decisions. Now, don’t get me wrong. No-one is perfect and you are not always going to get it right but we need to stop judges from using precedents to cherry-pick a case because it might suit their objectives or because they want to wash their hands of a particular case. I am sorry but the judicial system has a responsibility under the separation of powers to hold politicians to account through the courts, okay? Because we can’t have politicians not being held to account by the judiciary when we have those separations of powers. We need that genuine separation of powers. Obviously the politicians are not going to hold themselves to account because we have that internal conflict of interest. These are some of the reasons why.

An interesting article was sent to me when the Queensland Law Society did advocate for the establishment of an independent judicial commission. They said, ‘The primary aim of such a commission is to preserve public confidence in the administration of justice and to promote the separation of powers. A strong and independent judiciary is fundamental to maintaining the integrity of the judicial system as well as government and public institutions.’ That is a very, very good point, because in the last 12 months a case was taken in front of a judge. The judge ruled that these particular applicants had no standing. It turned out that the judge had represented the defendant in prior cases and had never disclosed her connection to the defendant, or what would have been the defendants had they got standing. Yet again, you have got to ask yourself: why isn’t this judge being held up to scrutiny for the fact that she did not disclose that she once represented this particular alleged defendant, or what would have been a defendant had standing been given? So, yet again, when it comes to judges, it is not always the fact that they wash their hands or they are activists. Sometimes they actually have a conflict of interest. These judges, like everyone else, need to be held accountable to the people.

Just in the last week we had the issue of a lady in Victoria who was actually locked up for 22 days in the COVID pandemic because she did not wear a mask. The judge actually found in her favour that the Victorian government had acted incorrectly in locking her up. The young lady who was locked up in jail for 22 days for not wearing a mask was offered $15,000 to settle. She quite rightly wanted to take a stand because she wants to fight. It’s not easy to take a stand against the big institutions in this day and age, because they will step on you if you take them on. To her credit, she had the guts to take them on. She won in court. But, lo and behold, the court ruled against her in terms of costs, and now she’s got to find $200,000 to pay for her own legal fees. So this is another thing that we need to look at in this inquiry, if it gets up: the cost of trying to protect your rights or hold people to account—not just the government but big corporations or whatever. It’s not easy. Many people just do not have the money to do this, because you are looking at hundreds of thousands of dollars, and there’s no guarantee that, even if you do win, costs aren’t going to be awarded against you.

So I would recommend to people that we do vote this motion up. I know we’ve got a hectic workload and all that, but that’s why we come down here: to fight the fight—to fight for freedom.

I’ll just throw one other thought in there, because I’ve had another constituent put this idea to me and I didn’t know—and I stand to be corrected, because, like I said, I don’t pretend to be an expert on all legal matters. Apparently, in the States, some judges are actually elected, and that way, if a judge gets too far away from what the community wants or expects, they get booted out of office through an electoral process. In other words, judges are elected and not selected, and I think there’s some merit in that. I don’t know if you’d want to take that all the way through to the High Court, but it would certainly be something worth thinking about at your local magistrate’s office.

In my home state of Queensland, where crime is rampant, are the magistrates cracking down enough? To be fair to the magistrates—with the greatest of respect—they may be bound by the laws made by the government of the day that prevent certain repeat offenders from being locked up. But these are issues that we need to look at.

I’ll finish with this: who will guard the guardians? I think that everyone should be held to account; everyone should feel as though someone is watching them, because, if they don’t feel like they’re being watched, they’re inevitably going to get lazy and not necessarily maintain the integrity of their roles. So I’ll finish on that, and I would strongly recommend that everyone support this motion to investigate the establishment of a judicial commission.