The Northern Territory needs access to a judicial commission to deal with complaints about judicial conduct. So said Chief Justice Michael Grant (at right) in his speech marking the opening of the 2018 legal year on Friday last.
While not commenting on any specific case, he made it clear that his remarks were prompted by the “controversy concerning the conduct of the youth justice jurisdiction in Alice Springs”.
Central to this controversy has been the conduct from the bench of Judge Greg Borchers, particularly concerning a youth from Tennant Creek, whose mother had died allegedly at the hands of his father. This case was drawn to public attention by Central Australian Aboriginal Legal Services (CAALAS), which later made public a call to the NT Attorney-General to assess Judge Borchers’ suitability to remain on Youth Court .
In this context, Chief Judge of the Local Court, John Lowndes, released a statement in December about his investigation into the complaint. He found that while there was no misconduct in the judge’s dealings with the youth, his conduct fell short of appropriate judicial conduct.
Judge Borchers was removed from his duties at the youth court in Alice Springs but continues to have contact with youth during bush circuit court, including at Tennant Creek.
Since then, over a number of reports in January, the NT News has revealed that Dr Lowndes had earlier investigated complaints about Judge Borchers’ conduct in other matters, the results of which had not been made public or further commented on by Dr Lowndes.
This is entirely proper, said Chief Justice Grant, and calls in the media for Dr Lowndes, as principal judicial officer for the Local Court, to make public comment misunderstand his role and powers.
However, the Chief Justice agrees that the NT would be served by a better mechanism for dealing with complaints. A past inquiry has found that the jurisdiction is too small to have its own standing judicial commission. A solution could be found by having a local registrar to weed out frivolous complaints, referring others to the NSW Judicial Commission.
“Such a process would take advantage of that body’s long established expertise in the field, while avoiding the conflicts of interest which would necessarily arise in a jurisdiction of this size,” said the Chief Justice.
“The judicial commission would then have a range of statutory powers which could be exercised in the event a complaint is found to be made out, and fashioned to meet the particular requirements of each case.”
He said this model will be put to the Local Court judges, the Law Society, the Bar Association and the Criminal Lawyers Association of the NT “with a view to making a joint submission to the executive government for [its] establishment”, allowing “issues such as the current controversy [to] be dealt with by that mechanism. We believe that process would best serve the public interest.”
The Chief Justice also made comments about the importance of security of tenure for judges, as one of the means by which independence of the judiciary is guarded:
“Judges are appointed by the executive government, and retain that appointment until retirement unless removed on the address of the Legislative Assembly on the grounds of incapacity or misconduct … Lapses in appropriate judicial demeanour and conduct falling short of the ideal do not qualify as judicial misconduct warranting removal.
“These processes and distinctions are maintained to ensure that the courts do not fall prey to arbitrary and capricious interference by executive governments and sectional interest groups. This understanding must be to the fore of any discussion concerning judicial conduct,” he said.
– précis by Kieran Finnane