High Court justices ‘must be subject to federal judicial commission’

Sparing High Court justices from the scrutiny of a judicial watchdog could exacerbate the risk of repeat instances of sexual harassment among the country’s most revered judiciary.

Former High Court judge Dyson Heydon was found by an inquiry to have sexually harassed six female judges' associates, which he categorically denies.

Sparing High Court justices from the scrutiny of a judicial watchdog would render the system “incomplete” and could exacerbate the risk of repeat instances of sexual harassment among the country’s most revered judiciary, Australia’s legal fraternity says.

The concerns come amid an ongoing consultation between Australia’s legal profession and Attorney-General Mark Dreyfus over the establishment of a ­judicial commission to govern misconduct in federal courts.

Currently, the High Court, Federal Court and Federal Circuit and Family Court handle complaints about judges internally, although the Chief Justice of the court may choose to refer the complaint elsewhere.

Mr Dreyfus in September last year announced the government in principle supported the establishment of a federal judicial commission to provide a “transparent and independent means to ­address concerns about the conduct of judges”.

In January, he released a discussion paper regarding the implementation of the commission, and whether the new watchdog “should ... be empowered to examine complaints about a justice of the High Court in addition to other federal judges”.

Submissions have revealed experts, lawyers and former judges overwhelmingly think High Court justices should be subject to the judicial commission.

Former Federal Court judge Alan Robertson SC said there was “no reason why justices of the High Court should be excluded”.

“If they were excluded, there would be unnecessary fragmentation and the difficulty or embarrassment the court experienced in 2020,” he wrote in a submission to Mr Dreyfus. “There is no reason to think issues may not arise in relation to those judges.”

The “embarrassment” Mr Robertson referred to was former High Court judge Dyson Heydon, who in 2020 was found to have sexually harassed six female associates in his decade on the bench.

Former Federal Court judge Alan Robertson SC.

Chief Justice Susan Kiefel at the time said the findings, were of “extreme concern” to herself, fellow judges and staff of the court.

University of NSW professor Gabrielle Appleby and University of Adelaide professor Suzanne Le Mire said it was “critical that members of the apex court in Australia be subject to the same accountability measures and expectations of integrity as other judicial officers.”

“This is particularly so in light of the findings of sexual harassment against former High Court justice Dyson Heydon in 2020, and the allegations of misconduct against former High Court justice Lionel Murphy in the 1980s,” the pair wrote in their submission.

“A system that does not apply to the High Court would immediately be perceived as incomplete and would fail to respond to very public concerns about the conduct of former members of the High Court.”

The Australian Bar Association acknowledged there might be “potential objections” put forward against including High Court judges within the scope of the commission, such as that a High Court judge should not be subject to scrutiny by a judge of a lower rank.

“These potential issues are not without precedent and the association considers they could be overcome by appointment ad hoc of a retired High Court judge to hear the complaint (with a statutory mechanism for this to occur),” its submission read.

“The association proposes the federal judicial commission should be empowered to examine complaints about all federal judges, including of the High Court.”

The public release of the submissions came just as Federal Court judge Salvatore Vasta was found personally liable for the false imprisonment of a father jailed for contempt of court and fined $309,000 in damages.

Following Judge Vasta’s indictment, Law Council of Australia president Luke Murphy reiterated the council’s support for an independent commission.

“The Law Council has long supported this initiative as one that can fairly and punctually address complaints directed to the federal judiciary in an independent and structured manner,” he said in a statement.

Other issues discussed by those making submissions were whether the federal judicial commission could investigate the conduct of former judges.

“Complaints about a former judicial officer would be important and salutary because a judicial officer could not then stymie an examination by resigning,” Mr Robertson said in his submission.

The Australian Bar Association agreed.