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National Integrity Commission must uphold separation of powers
If a Federal Judicial Commission to investigate alleged judicial misconduct is not separated from the federal government’s proposed National Integrity Commission, there could be questions of constitutional conflict, argues the Law Council of Australia.
Jerome Doraisamy
In its submission on the proposed commission to stamp out corruption, LCA reiterated its support for a national integrity commission, but emphasised the need “to protect and uphold the rights of individuals subject to the powers” of that commission.
“Establishing a federal statutory commission to address the issue of corruption within the government’s law enforcement and public sector agencies – with appropriate safeguards for the protection of the rights of individuals – is a welcome and positive step,” said LCA Arthur Moses SC.
“Corruption has a corrosive effect on society, undermines public confidence in government and is contrary to principles of democracy and the rule of law. It also has a detrimental impact on the economy because of the potential to distort market forces.”
But, the advocacy group noted, subjecting the judiciary to the National Integrity Commission’s review “could be open to constitutional challenge as this potentially infringes the separation of powers established in constitution”, which vests judicial power in the judiciary alone.
“This could place the [National Integrity Commission] legislation in jeopardy as the laws may be ruled invalid. This would in turn threaten investigations into corruption and the lawfulness of actions by the [commission]. It is important that the Federal Parliament gets this legislation right from the beginning,” Mr Moses continued.
“Australia’s separation of powers is in and of itself a critical safeguard against corruption. Maintaining the separation between judicial and executive power is important and must not be undermined. Judicial officers are appointed to serve the public – it is right that federal judicial officers be accountable to the public by a transparent and independent body that can investigate and determine complaints of misconduct or incapacity to perform the important role of a judge. However, we have to get the mechanism for doing this right.”
LCA’s submission also calls for a comprehensive whistleblower regime, including establishing a whistleblower protection commissioner to provide protections for those reporting corruption.
“A statutory framework for whistleblower protection would promote the exposure of corrupt conduct, which can be difficult to detect. It would also provide an avenue for members of the public and public servants to obtain independent and anonymous advice about issues relating to disclosure and reporting of suspected corruption,” Mr Moses said.
Jerome Doraisamy
Jerome Doraisamy is the managing editor of Lawyers Weekly and HR Leader. He is also the author of The Wellness Doctrines book series, an admitted solicitor in New South Wales, and a board director of the Minds Count Foundation.
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