Legislative Council - Thursday 30 August 2018

Ms  FORREST (Murchison ) – Mr President, I support the bill.  It is important and timely to look at the actual framework that governs justices of the peace.  The member of Mersey talked about the issue of updating the website and I would be interested to hear what the Leader has to say.

I wanted to focus a bit on the second reading speech, which says – 

The bill contains provisions dealing with who is eligible for appointment as a justice of the peace. 

The criteria include an understanding of the role and duties of a justice, undertaking appropriate training -

which has been talked about - 

being likely to be reasonably available to exercise the powers of a justice, and being a fit and proper person to hold the office.

I will come to what a fit a proper person is in a moment.  It goes on to talk about -

The bill imposes some additional duties on appointed justices, including the requirement to undertake prescribed training, to be reasonably available and active and to comply with any code of conduct prescribed by the regulations.

I want the Leader to assure me it will be prescribed.  There is provision to enable compliance with the code of conduct.  I want to know it will be done.  This is really important.  I say this because a few years ago I received a letter addressed to me marked 'Private and confidential'.  It came to my office.  When I opened the letter, it was from a person raising their personal views on their letterhead; above their details it said 'Justice of the Peace' and it was signed at the bottom noting this person was a justice of the peace.

The language used in the letter and the way they referred to what they believed was my decision making regarding marriage equality was disgraceful.  I have not seen anything more revolting from anybody.  I have received a few bits and pieces, as you do, when people disagree with me.  That is okay.  If it had been provided on just a blank piece of paper without that, I would have thought, 'Fair enough, your opinion'.  But this person had done it to all intents and purposes as a JP, which was noted at the top and bottom of the letter.  Now is this a fit and proper person to be doing this?  If that person did that sort of thing to other people whose opinions or actions he did not agree with, to my mind that is really not upholding the values and the expectations we have when justices are appointed.  It is really important there is a strictly upheld code of conduct.

I went to the provisions in the bill with the grounds for removal from office of a justice of the peace.  This person's name had been removed because they had died; I will not mention their name.  I notice JPs can be removed for repeated breaches of the code - I do not know if this was a repeated breach or not.  I communicated with this person and told them how appalled I was that they had used that letterhead and that, in my view, it was entirely inappropriate.  Not that there was anything I could really do about it, but I took some further action.

Another thing being -

(c)    the justice has failed, without reasonable excuse, to comply with another requirement made or given by the Secretary under this Act; or

(d)    on at least 3 occasions, the justice has failed, without reasonable excuse, to carry out his or her duties; or

(e)    … to comply with any provision of this Act; or

(f)     … no longer has the physical or mental capacity to carry out the duties of the office of Justice of the Peace; or

(g)    the justice has brought the office of Justice of the Peace into disrepute. 

I argue that this letter brought this justice and the office of it into disrepute; it was most disgraceful. 

Mr President, I want to hear from the Leader that the code of conduct will be made and that it will be robust.  I guess the clause that deals with that is clause 20 because it says 'Requirement to comply with code of conduct' and a justice must comply with it.  But there does not appear to be any penalty for not doing so, except that it can lead to their dismissal.  I would like some clarification of that.  If people do not comply with the code and they do not meet those expectations criteria, could that then trigger grounds for removal from the office of the justice of the peace?  I assume some of the reasons I mentioned would fit into clause 29(g), which deals with bringing the office of justice of the peace into disrepute.

In clause 30, there is also 'Recommendation that an appointed justice be removed from office of Justice of the Peace'.  It says -

(1)     The Minister may recommend to the Governor that an appointed justice be removed from the office of Justice of the Peace if the report of an investigator in relation to the conduct of the justice includes the finding that there are grounds for the removal. 

(2)     If, despite a report of an investigator finding that there are grounds for the removal of an appointed justice from the office of Justice of the Peace, the Minister determines not to recommend to the Governor that the justice be removed from the office of Justice of the Peace -

(a)     the Minister is to notify the Secretary of that determination as soon as reasonably practicable; and

(b)     the Minister may inform the Secretary that he or she is to require the justice to take one or more actions which may include, but are not limited to -

          (i)        apologising; and

          (ii)       undertaking training or professional development; and

(c)     if the justice is suspended from the office of Justice of the Peace, the Secretary is to revoke the suspension.  [OK]

My concern is the minister could decide, for whatever reason, they do not agree with the investigator's report that this person should be removed from office and decides not to abide by that recommendation.  The minister then notifies the secretary and says that maybe they need to apologise or do some training.  Again, that is a matter of judgment.  What if there is a conflict here?  What if this is a good mate of the minister?  They went to uni together; they play footy together; they are best mates.  The minister is making the decision here, and I do not see any other circuit-breaker here.  How do you avoid conflicts of interest?  Justices are often known in political circles.  Some of the justices in this Chamber are literally in political circles. 

How do we avoid that conflict?  I think there is a serious risk there, and I am concerned about that.  Clause 30 has no requirement for justification of the minister's decision.  It just says the minister can determine not to recommend the removal, and all they have to do is notify the secretary and suggest what sanctions there may be - and the secretary has to do what they are told.  That is effectively what it is.  I am concerned that the minister does not need to explain why they have taken that decision and not removed them.  If there is a potential conflict, how does a minister deal with that?  There is no capacity for the minister to defer the decision-making.  This is a really serious matter, and I hope the Leader can address it.  This may need amending, by putting in a provision for the minister to have a circuit-breaker here.  If the minister declares an interest, where do they then go because there is no provision?

Mr Valentine - Are you talking about clause 30?

Ms FORREST - I am talking about the whole of clause 30, which you have to read in context with the other parts.  Once a justice of the peace is removed, the Governor makes a decision to remove them on the recommendation of the minister, and then we are going to name and shame them.  In clause 31(3) the notice provided to a justice under subsection 2(a) is to include the reason for this.  A notice published in the Gazette includes the name of the justice and the reason for their removal.  We are naming and shaming.  If the person has lost their physical or mental capacity to carry out their duties, it is not mentioned.  The next subclause deals with that.  If they have written inappropriate letters, that would be listed.

Mr Valentine - They have a right to tell them they are no longer a justice, a bit like motorcycle groups.

Ms FORREST - I support the bill in principle, but this is a really important matter that may need further consideration.