AJOA Comments on Proposed Tasmanian Geason Legislation

Much media commentary has ensued in the two weeks prior to publication of this issue concerning the proposal by the Tasmanian Government to enact special legislation which would have the impact of suspending Justice Gregory Geason – a judge of the Supreme Court of Tasmania – from sitting as a judge.  Justice Geason is the subject of charges returnable in the Magistrates Court – to which he has pleaded not guilty – of common assault and emotional abuse respectively.

The Australian Judicial Officers Association (AJOA) – a leading voluntary association of serving and retired judges and magistrates drawn from jurisdictions across Australia – has issued a public statement critical of the proposed legislation.

The press release by the AJOA is dated 8 December 2023, and is under the hand of Justice Michael Walton, the AJOA President.

After noting that Justice Geason was not a member of the AJOA,  Justice Walton (inter alia) wrote:

The AJOA does not seek to comment on the charges brought against Justice Geason, other than to note that, like the rest of the community, judges are subject to the law, including the presumption of innocence.

The AJOA is, however, very concerned about the manner in which the Tasmanian government has proposed to respond to the situation which has arisen in relation to Justice Geason.

The AJOA supports the establishment of procedures and bodies to receive and determine complaints made about the conduct of judges. Most states, but not Tasmania, already have such bodies. The urgent recall of the Tasmanian Parliament proposed by the Attorney-General is not, however, for the purpose of considering legislation to establish an equivalent body in Tasmania, but to pass legislation directed only at Justice Geason.

Judges of the Supreme Court of Tasmania may only be suspended or removed from office upon the address of both Houses of Parliament. It is therefore open to Parliament to make enquiries into the conduct or behaviour of a judge to the extent that it is thought that their conduct or behaviour might render them unsuitable to continue in office. Any such enquiries must, however, be formulated so as not to infringe legal principles, including the separation of powers between the legislature, the executive and the judiciary.

The AJOA has serious concerns that the legislation proposed to facilitate an enquiry into Justice Geason’s conduct and behaviour, the Supreme Court (Parliamentary Commission of Inquiry) Bill 2023, does not meet these essential standards in certain key respects.

If enacted, s 17(1) of the Supreme Court (Parliamentary Commission of Inquiry) Bill 2023 would give the Minister for Justice the power to suspend Justice Geason in certain circumstances, including where he is charged with an offence that is punishable by imprisonment for a term of 12 months or more. The charges brought against Justice Geason are of this type. The Minister is also given power to specify the terms and conditions in relation to the suspension and to lift the suspension at any time (s 17(3)). These provisions, if enacted, would constitute a flagrant interference by the executive with the independence of the judiciary.

Section 6(2) of the Supreme Court (Parliamentary Commission of Inquiry) Bill 2023 appears to abrogate all vital and long-established common law privileges, including legal professional privilege. The Commission of Inquiry into Justice Geason would be empowered to conduct its inquiry and obtain information ‘in any manner it considers appropriate’, and would not be restricted by law or by any privilege from ‘reviewing records, documents or information’. Further, s 7(5)(b) makes s 26 of the Commissions of Inquiry Act 1995 applicable. That provision abrogates privilege against self-incrimination.

The proposed Commission of Inquiry into Justice Geason would be required to complete its inquiry as soon as practicable (s 5(2)) and would be empowered to prepare an interim report (s 8(1)) containing ‘interim findings of fact’ upon which it could express its opinion about whether the Judge’s conduct and behaviour warrants his suspension or removal from office. The capacity of the Commission of Inquiry to express an opinion that a judicial officer should be removed from office based only upon ‘interim findings of fact’ contained in an interim report undermines the integrity of the proposed inquiry and offends against basic notions of fairness.

The full press release is here.