CONDUCT OF MAGISTRATE BRIAN MALONEY
Mr GREG SMITH
(Epping—Attorney General, and Minister for Justice) [11.14 a.m.], by leave: Members would be aware that I have recently tabled a report of the Conduct Division of the Judicial Commission of New South Wales in relation to Magistrate Jennifer Betts. Members may be aware that Magistrate Brian Maloney is also the subject of a report of the Conduct Division and that this matter has been the subject of recent proceedings before the Supreme Court of New South Wales. Today I table both the Conduct Division report and a document prepared on behalf of Magistrate Maloney at my invitation, being the Magistrate's response to the report.
The report of the Conduct Division, dated 6 May 2011, found a number of complaints against Magistrate Maloney to be partially substantiated, and also found that he had breached an undertaking given by him in 1999, but that the breaches were substantially caused by his Bipolar II disorder. The Conduct Division found that Magistrate Maloney is and will remain incapacitated for the performance of judicial duties by his Bipolar II disorder and that the matters referred to in its report could justify parliamentary consideration of his removal from office on the grounds of proved incapacity.
I have previously outlined for the benefit of members the procedures for investigating complaints against judicial officers as provided for under the Judicial Officers Act 1986. Relevantly, part 6 of that Act sets out the procedures to be followed when a complaint is made in relation to a judicial officer. The function of the Conduct Division is to conduct an examination of complaints referred to it by the Judicial Commission. For this purpose it may initiate such investigations into the subject matter of the complaint as it thinks appropriate. The jurisdiction of the Conduct Division is not disciplinary; it is protective and is designed to protect the public from judicial officers who are found to have misbehaved, rendering them unfit for office, or who are suffering from incapacity and therefore are unable to discharge the duties of office. It also protects the judiciary from unwarranted intrusions into judicial independence.
If the Conduct Division is of the opinion that a judicial officer about whom a complaint has been made may be physically or mentally unfit to exercise efficiently the functions of a judicial office, the Conduct Division may also request the officer to undergo a medical or psychological examination. If the Conduct Division decides that a complaint is wholly or partially substantiated, it may form an opinion that the matter may justify parliamentary consideration of the removal of the judicial officer from office. If it forms such an opinion, the Conduct Division must present a report to the Governor setting out its findings of fact and opinion as to whether the matter could justify parliamentary consideration of the removal of the judicial officer from office.
Section 41 of the Judicial Officers Act 1986 and section 53 of the New South Wales Constitution Act 1902 provide that a judicial officer may only be removed from office on the grounds of misbehaviour or incapacity. The provisions of the New South Wales Constitution Act 1902 cannot be invoked unless and until the Conduct Division of the Judicial Commission of New South Wales has made a finding that the matter could justify parliamentary consideration of the removal of the judicial officer from office. Under the New South Wales Constitution Act 1902, a holder of judicial office can be removed from office by the Governor on an address from both Houses of Parliament in the same session seeking removal on the grounds of proven misbehaviour or incapacity.
For the assistance of members, I will now provide an overview of the factual context of the Conduct Division's report. The Conduct Division considered a number of complaints relating to incidents that occurred between 2002 and 2010. The Conduct Division was requested to consider these complaints having regard to the undertakings given by Magistrate Maloney to the Conduct Division in respect of his conduct referred to in an earlier report from 1999. That undertaking was that he not be loquacious, not interrupt solicitors, and not introduce matters reflecting his personal experience; and be more judicial and allow matters to run their course without interfering. The Conduct Division accepted that Magistrate Maloney's inappropriate behaviour had been substantially caused by his Bipolar II disorder.
However, the Conduct Division expressed the view that if Magistrate Maloney continues as a magistrate there is a very real risk that he will suffer hypomanic attacks, or mood changes, which will result in events such as those reflected in the complaints considered by the Conduct Division. The report of the Conduct Division stated that the likelihood of such attacks or changes, taken together with their probable consequences, constitute an unacceptable risk that would have to be taken for Mr Maloney to continue as a magistrate. The Conduct Division found that Magistrate Maloney is and will remain incapacitated for the performance of the office of magistrate and formed the opinion that that incapacity could justify parliamentary consideration of the removal of Mr Maloney from office on the ground of proved incapacity.
Magistrate Maloney recently brought proceedings in the Supreme Court seeking a declaration that the decision of the Conduct Division and Judicial Commission that he is incapacitated for the performance of the office of magistrate is invalid and an order quashing this decision, and a declaration that the act of the Conduct Division and the Judicial Commission in referring its report to the Government of New South Wales is invalid. The case was restricted to issues of law arising under administrative law principles. The judgement of the court was that the errors of law identified had not been made out and the court dismissed the summons. Also tabled is a copy of the judgement.
The court had previously lifted a restraining order preventing me from tabling the report of the Conduct Division in both Houses of Parliament. The Judicial Officers Act requires that the report be tabled as soon as practicable and I meet that obligation in tabling the report today. I will shortly give notice of a motion to invite Mr Maloney to appear at the bar of the House to show cause why Parliament should not request the Governor to remove him from office. I ask members of the House to consider in detail the report of the Conduct Division.
Mr PAUL LYNCH
(Liverpool) [11.30 a.m.]: I note with regret the tabling by the Attorney General of the report of the Conduct Division of the Judicial Commission concerning Magistrate Maloney, his response and the Supreme Court judgement by Justice Cliff Hoeben. Judicial officers can be removed only by an address of both Houses of Parliament. That stems from the Act of Settlement 1700 and is entrenched in section 53 of our Constitution following the 1995 referendum. The infrequency of these events underlines just how serious are the matters that will now be for consideration by this House and the other place. They are very serious in their individual impact on the magistrate, on the magistracy generally and, in a sense even more importantly, on the perception of the magistracy by the community.
When I spoke briefly in relation to the tabling of the papers concerning Magistrate Betts I indicated then that I did not think these were matters for a partisan debate. I am happy to confirm that members of the Labor caucus will all be exercising a non-party vote, that is, a conscience vote, in relation to these matters. I think that is the only way of dealing with it and I suspect that is a view shared by other members of this House. Broadly, I think members will have to act, in a sense, judicially. I notice when matters concerning Justice Vince Bruce were dealt with, the then Attorney General referred to members of Parliament acting as members of a jury. Whichever analogy one wishes to use, members will have to assess carefully all the material that is in front of them, consider it very carefully and perhaps not be guided by a whole range of extraneous matters concerning various opinions expressed in the media.
The issue is very much the material in front of us and we have to make individually serious assessments about it. I apprehend from the Government that it proposes to deal with it procedurally in much the same way that Justice Bruce's matter was dealt with; that is, the two Houses dealing with it separately. There was some suggestion in 1998 that there be a joint sitting. I think that was wrong then; I think that is not what the law requires. I assume that when the magistrates address at the bar they will not be subject to questioning. That was certainly the precedent previously and it makes sense to me for that to be the way that it is done now. As I say, it must inevitably be a matter of regret that these documents are tabled, but this is an extraordinarily serious constitutional responsibility of these Houses, which each member regards very seriously.
Mr GREG SMITH
(Epping—Attorney General, and Minister for Justice) [11.31 a.m.], by leave: I confirm that these matters will be dealt with separately by each House and it has been made clear that Government members will have a conscience vote on this matter as well as the Magistrate Betts matter.