WEST AUSTRALIAN JUDICIAL COMPLAINTS SYSTEM LACKS TRANSPARENCY

West Australian Chief Justice calls for complaints overhaul

• BY:DEBBIE GUEST 
• From:The Australian 
• June 17, 2011 12:00AM

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WESTERN Australia's judicial complaints system lacks transparency and has no resources, according to the state's top judge, who is calling for an overhaul and the establishment of a judicial commission.

Chief Justice Wayne Martin wants his state to adopt a judicial commission system similar to that of NSW, with a panel resourced to investigate complaints.

He also wants the commission to provide judicial education and, ideally, a database on sentences imposed, along with support staff who would also educate the public on complaints.

"There are a number of problems with the current system. It lacks transparency . . . I don't have any processes or procedures available to me that are open and transparent," Chief Justice Martin told The Australian.

"I don't have any resources through which I can conduct an investigation and when I provide my response, I'm sure that a lot of people feel they haven't been given the independent and transparent hearing they feel they deserve."

His comments come as two NSW magistrates with mental illnesses fight to remain in office after being the subject of adverse reports on their conduct by the NSW Judicial Commission.

In WA, complaints are referred to the head of the court's jurisdiction and if the complainant is not satisfied, the grievance goes to Chief Justice Martin. The exception is the Magistrates Court, where the Chief Magistrate can refer the matter to the Attorney-General.

This happened in the case of Magistrate Barbara Lane, who was the subject of a complaint by by the Director of Legal Aid after she berated a 22-year-old lawyer in open court. The Legal Aid lawyer later committed suicide.

Last week, Attorney-General Christian Porter announced he had decided not to issue Magistrate Lane with a show-cause notice on why she should not be removed from office.

But the issue prompted Mr Porter to say that the process of judicial complaints could be enhanced "to provide greater accountability and transparency and preserve the independence and authority of the judiciary".

Mr Porter has referred the issue to the Law Reform Commission, and Chief Justice Martin said he supported this and preferred a system in which government only played a role when a grievance reached the stage of a judge or magistrate being considered for removal from office.

"The parliament is not an appropriate place for conducting a detailed inquiry into the merits or otherwise of a complaint. It's much better if the inquiry is conducted with normal processes . . . and then a report be prepared for the parliament for its consideration," Chief Justice Martin said.

He said the judiciary had resolved they wanted a commission back in 2007.

"So we're very keen to assist the government in finding a way to introduce such a model."

The advantage of a commission was that a panel investigating complaints operated much like a royal commission and could summons witnesses, call evidence and make findings of fact, he said.

Whether the inquiry should be heard in public would depend on the case, Chief Justice Martin said, because there could be privacy issues and the possibility of causing irreparable damage to an officer's reputation if claims were unfounded. About 100 complaints a year are received by Chief Justice Martin, although many concerned the outcome of a case rather than a problem with the judge or magistrate.

Other issues raised include rudeness by the judicial officer, delay in delivering decisions and partisanship.

"I have conducted my own investigations into matters, and from time to time have spoken to judges about matters arising. So far there hasn't been anything so serious that it needs to be taken any further."

Chief Justice Martin said he hoped there was never a need for a commission to refer a judge to be removed but it was important to make changes now because of the time needed for legislation.

Resources needed to create a commission would be modest, he said, with the panel essentially consisting of the heads of the courts along with a couple of community members.

But Chief Justice Martin added that the judicial education and sentencing database function of the commission would be more expensive.

Law Society of Western Australia president Hylton Quail said the society supported the creation of a judicial commission.