It’s time federal judges face proper scrutiny
Who should judge the judges? At state and territory level, Victoria, NSW, South Australia, the Northern Territory and the entire ACT have independent bodies that receive and manage complaints about members of the judiciary.
Our reporting this week revealed that almost a decade ago, federal court judge Alexander “Sandy” Street was the subject of an undercover police report after an interagency task force examined a deal between his ex-wife’s shipping company and Chinese military officials.
Taskforce Polaris, then tasked with investigating coastal crime, was concerned enough to send the report to the Australian Federal Police, and it appears to have hit a dead end there.
We know that neither then-attorney general George Brandis nor the chief judges of the Federal Circuit Court (including incumbent William Alstergren) sent this letter. We are not suggesting that Street or his ex-wife Sally London broke any laws. But how can serious questions about the conduct of a sitting federal court judge go unexamined for so long?
Alstergren has now launched an investigation into this matter. But examining the conduct of this country’s highest level of judiciary should not be a temporary game of catch-up.
In 2022, the Albanian government has committed in principle to establish a federal judicial commission. Attorney General Michelle Rowland and her predecessor, Mark Dreyfus, said the government “continues to consider” the issue.
The design of such a commission is, of course, very important for its effectiveness. In its January 2023 scoping document, the government asked legitimate questions about its remit, including its membership, what happens when its members disagree, and whether it can investigate matters on its own initiative. More importantly, the question was raised to what extent the work of such a commission and the identities of the individuals examined should be made public.
Risks to public confidence in the judiciary are further increased when information about the behavior of judicial officials comes to light after having been suppressed. Appearances are important even when nothing is wrong and no such suggestion is made here. It is worth noting that questions have been raised about Alstergren’s disclosure of his relationship with her and fellow federal judge Amanda Mansini.
Under Article 72 of the Constitution, the terms of office of federal judges can only be annulled upon request to the governor general by both houses of parliament, and the government may be concerned about not undermining the separation of powers and the independence of the courts.
Barrister Geoffrey Watson, SC, in his role as director of the Center for Public Integrity, believes there should be a federal judicial commission, pointing to the NSW experience.
“It has turned out to be working very well, with minimal disruption to judicial processes and increased confidence in the judiciary,” he said earlier this year. “There’s no reason to think it wouldn’t work with similar benefits at the federal level.”
This week, the NACC’s first commissioner, Paul Brereton, resigned following a finding of misconduct against him and continued negative publicity about his performance. If the work of such commissions were simple and uncontroversial, few people would object to their creation. However, this does not mean that the task can be postponed. Labor must continue to deliver on the commitment it made four years ago.
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