Commonwealth of Australia Explanatory Memoranda

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COURTS LEGISLATION AMENDMENT (JUDICIAL COMPLAINTS) BILL 2012

                             2010 - 2011 - 2012







               THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA







                          HOUSE OF REPRESENTATIVES







        COURTS LEGISLATION AMENDMENT (JUDICIAL COMPLAINTS) BILL 2012





                               ADDENDUM TO THE
                           EXPLANATORY MEMORANDUM







            (Circulated by the authority of the Attorney-General,
                       the Honourable Nicola Roxon MP)

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS (p4)


At the end of paragraph 22, insert the following sentence:


The Bill also indirectly engages the right to respect for privacy and the
right to work and employment under Articles 22 and 27 respectively of the
Convention on the Rights of Persons with Disabilities ('CRPD').


At the end of paragraph 23, add the following text:


Article 22 of the CRPD provides a corresponding right to privacy to Article
17 of the ICCPR for persons with disabilities. Specifically, Article 22
requires the privacy of personal, health and rehabilitation information of
persons with disabilities to be protected on an equal basis with others.


At the end of paragraph 25, add the following text:


Participation by a judicial officer who is subject to complaints handling
processes within the court is voluntary.  In circumstances where a judicial
officer provides personal information in a complaints handling process
(such as about a physical or mental disability), this amendment will
protect the privacy of this information.  In this way, the Bill provides
for safeguards to protect privacy of persons with disabilities on an equal
basis with others while maintaining fairness and flexibility of complaints
handling processes within the court.


Right to work and employment on an equal basis


Article 27 of the CRPD protects the right of persons with disabilities to
work on an equal basis with others.  This includes protection against
discrimination in the workplace and provision of reasonable accommodation
to persons with disabilities in the workplace.


Federal judicial officers have security of tenure under the Constitution.
Paragraph 72(ii) of the Constitution is the only basis on which a judicial
officer may be removed from office Paragraph 72(ii) of the Constitution
provides the federal judicial officers shall not be removed except by the
Governor-General in Council, on an address from both Houses of the
Parliament in the same session, praying for such removal on the ground of
proved misbehaviour or incapacity.  The Bill does not seek to define or
limit the concept of incapacity as a constitutional basis for removal of a
judge from office under paragraph 72(ii) of the Constitution.


Recognising the need to balance public interest considerations and the
rights of judicial officers, the Bill supports a broad and flexible process
for complaints handling about judicial officers within the courts to enable
a head of jurisdiction to handle complaints appropriately and sensitively
in each case.


While supporting the powers of a head of jurisdiction to take measures
where they believe it reasonably necessary in order to maintain public
confidence in the Court, the Bill does not limit the power of a head of
jurisdiction to provide reasonable accommodation for a judicial officer
with a disability so that the judicial officer can properly undertake their
functions.


The Bill does not affect current provisions in Court legislation which
require heads of jurisdiction to provide judicial officers with appropriate
access to (or reimbursement for the

cost of) annual health assessments or short-term counselling services (see
Family Law Act 1975, paragraph 21B(1A)(b); Federal Court of Australia Act
1976, paragraph 15(1AA)(b); Federal Magistrates Act 1999, paragraph
12(3)(b)).


The Bill is not discriminatory in dealing with allegations of incapacity.
Participation in complaints handling processes by judicial officers is
voluntary.


For these reasons, the Bill is consistent with and generally advances the
protection of these rights.  To the extent that it may also limit these
rights, those limitations are aimed at a legitimate objective and are
reasonable, necessary and proportionate.