[Index] [Search] [Bill] [Help]
Dr BURNS (Justice and Attorney-General): Madam Speaker, I move that the bill be now read a second time. This bill seeks to clarify four things: first, that judicial officers are immune from civil and criminal liability when exercising judicial function; second, that judicial officers are also immune when they are exercising administrative function; third, that members of administrative tribunals are immune from civil and criminal liability in the exercise of their function on the tribunal; and fourth, that participants, representatives and officers of administrative tribunals are immune from civil and criminal liability in the exercise of the duties. The purpose of this bill is to introduce a legislative system of immunities to judicial officers and members of administrative tribunals. Immunity for judicial officers stems from the common law and dates back to the 17th century. It was generally accepted that parties, witness, counsel, jury or judge could not be called to answer either in the civil or criminal courts for words or acts performed honestly and in good faith in the course of legal proceedings. The High Court of Australia has delivered judgments accepting this general proposition. This does not mean that legal proceedings are of themselves above the law. The law does not absolve liability simply because an act or omission was committed by a judge or a lawyer. Blatant disregard for the law such as bribery, corruption or perverting the course of justice does not attract the immunity. Provisions such as section 93 of the Criminal Code are specifically directed at judicial corruption. What the immunity does enable is the resolution of disputes because participants are free to fully state their case or exercise appropriate authority without fear of recrimination by government or other authorities. Traditionally the centuries old rule was taken to apply only to judges and magistrates and those persons who appeared before them. That is the immunity only applied to judicial functions. In more recent times however, quasi-judicial tribunals have been created by statute. These tribunals derive their power solely through government created legislation, not the common law. Normally such tribunals may only make decisions in relation to a particular area of industry or government business. Take for example, the Agents Licensing Board of the Northern Territory. Real estate agents, agent’s representatives, business agents and conveyancing agents must act in accordance with the Agents Licensing Act. Failure to do so may result in an appearance before the Agents Licensing Board. Similarly the Building Practitioners Board and Director of building control oversee the Buildings Act. The creation of these tribunals does not blur the lines between the separate functions of administrative bodies on one hand and judicial bodies on the other. The Supreme Court itself carries out a largely administrative task when it or one of its members constitutes or partly constitute tribunals such as the Motor Accidents Compensation Tribunal under the Motor Accidents (Compensation) Act or as a Land and Valuation Review Tribunal under the Valuation of Land Act. Often people who sit on tribunals are not judges or magistrates but industry specialists who have experience in that particular field. The establishment of the tribunal through legislation plus the fact that the members of the tribunal may not be judicial officers casts some doubt over whether the immunity normally afforded to judges, magistrates and participants in judicial proceedings also applies to these members of quasi-judicial tribunals. In addition, many judges and magistrates in particular perform functions of an administrative nature by sitting on those review panels which oversee the decisions made by these government created tribunals. The role played by these officers in such circumstances may be better classified as administrative. Judges and magistrates may also perform administrative tasks in the exercise of their judicial authority. Examples of these types of activities include authorising search warrants or granting a restraining order over property which is suspected of being the proceeds of crime. Judicial officers are well placed to be able to exercise this function, however it calls into question the extent to which traditional and judicial immunity afforded to judges and magistrates applies when the forum in which the decisions they make are not traditional courts, but tribunals. Finally, administrative tasks are also performed by judicial officers in the exercise of their judicial function. All these tasks are usually performed off the bench or when the judge or magistrate is not acting in a judicial capacity. Examples of these acts are organising court lists or delegating other judicial staff to sit at particular circuit courts. None of these functions can properly be classified as judicial although they are necessary for the day-to-day operation of our judicial system. There are over 122 individual acts which establish the Northern Territory Administrative Tribunals or persons with statutory powers of a quasi-judicial nature. These range from those mentioned previously to ones such as the Anti-Discrimination Commissioner, when considering complaints and making decisions regarding compensation. If, following a decision of a particular tribunal, one of the parties wishes to seek a review of the factual merits of the decision made, in the majority of cases that party makes an application to the local court. This is at odds with the rest of the country where there are formally established and wholly dedicated Appeals Tribunals with full-time members who hear the factual merits appeal, even though they are not formally appointed judges or magistrates. Although a similar regime may be desirable in the Northern Territory, our small jurisdiction may not yet be at a stage where it would be viable on a full-time basis. This is an issue that is under consideration. However, for the present and foreseeable future, it is more than likely that the judiciary will continue to have a strong day-to-day role in providing second-tier administrative decision-making. Indeed, it appears that most of the magistrates who perform the bulk of this review work have indicated they currently do not experience any difficulty in balancing their traditional judicial role with additional administrative review functions many government statutes still require them to take. What they have expressed concern about, however, is the uncertainty which surrounds the extent of their immunity when they perform these administrative tasks. They are not sitting as judicial officers, even though that is their main occupation; therefore, it is not clear to what extent traditional immunities which are offered to judicial officers extend to them when performing this administrative role. Further, not all of the acts which create tribunals specifically set out the extent of the immunity, if any, for members who are not judicial officers, legal practitioners, or other persons who come before the tribunal. It is important to bear in mind that, while these tribunals appear to have a strictly legal function, in actual fact they are government creations. Therefore, persons who appear before them may not be legal practitioners but government employees or industry specialists from the private sector. While government employees do enjoy a certain degree of immunity by virtue of their employment, it is unclear to what extent this immunity would extend to a private individual exercising functions in these tribunals. This bill seeks to clarify these potential anomalies by stating that all persons who are involved in these tribunals - be they judges, magistrates, industry specialists, witnesses or lawyers - will enjoy the same immunities which have previously been afforded parties who appear in judicial courts. The bill also ensures that when judicial officers perform administrative tasks such as organising staff meetings or dividing workloads, they are also afforded the same immunity as when they are actually sitting in a courtroom exercising their judicial function. The immunity will cover all persons performing tasks required under the 122 or so acts in the Northern Territory which establish administrative tribunals. As has always been the case with traditional judicial immunity, this immunity only applies when persons are acting honestly and in good faith before the tribunal. Criminal activity, bribery, or corruption is clearly not contemplated by this amendment. What is intended, however, is that Territory residents can participate fully in having their government queries resolved without fear of recrimination or legal action. I will now briefly deal with each of the provisions of the act. Clause 3 contains the key definitions. ‘Administrative tribunal’ is broadly defined so that it covers any person or body that may conduct hearings for the resolution of administrative or quasi judicial issues. Thus, it covers licensing bodies and determinative bodies and persons such as the Anti-Discrimination Commissioner and the Commissioner for Tenancies. For the provision of removing doubts that may exist regarding particular decision-makers, the regulations may prescribe that such persons are or are not a tribunal for the purposes of this legislation. Clause 4 provides the immunities for persons exercising judicial powers, powers of administrative review or ancillary powers. A member of a court, as defined, incurs no civil or criminal liability for performing an honest act in the exercise of their judicial powers, administrative powers assigned in their judicial capacity, or administrative powers conferred by law. Members of an administrative tribunal incur no civil or criminal liability for performing an honest act in the exercise of the power of administrative review, or any incidental powers conferred by law on the tribunal or member. An ancillary officer of a court or administrative tribunal incurs no civil or criminal liability for honest acts performed in the exercise of the powers conferred on the officer. Clause 5 sets out what are the immunities for witnesses and representatives. Representatives before an administrative tribunal, who may or may not be legal practitioners, and witnesses who give evidence before an administrative tribunal are immune from civil and criminal liability provided their behaviour is honest and reasonable in all the circumstances. Existing liabilities such as prosecution for contempt of court or professional misconduct continue to apply. Clause 6 provides that the act does not affect other acts and the common law. Many, if not most of the acts that provide for administrative tribunals, afford a level of protection for persons who are members of the tribunal or involved with the work of the tribunal. Often, they provide no protection for person who appear before the, with some exceptions, such as the Agents Licensing Act in relation to persons appearing before the Agents Licensing Board. Notwithstanding the introduction of the bill, existing immunities and protections afforded under legislation, and at common law, continue to apply. Over time, consideration will be given to amending other acts so that they use either the same words as in the bill or so that they rely on the bill. Madam Speaker, we have also given consideration to a suggestion made by the Chief Magistrate that the legislation should give judicial officers immunity from giving evidence concerning the discharge of their duties. The Chief Magistrate gave, as an example, immunity from giving evidence about search warrants. At this time, I do not support the need for such an amendment. It is one thing to provide a level of immunity for acts done in good faith in the course of duties, it is quite another matter to grant immunity from giving evidence about matters done in the course of duties. Based on advice provided by the Department of Justice, I understand that there are few, if any, recent examples of judicial officers giving evidence about why they made particular decisions. The practical problems do not warrant trying to draft legislation that could, in some circumstances, appear to place a judicial officer about the law. The view from such a place does not offer a good perspective for a judicial officer. Madam Speaker, I commend the bill to honourable members and table a copy of the explanatory statement. Debate adjourned. |