Credits

Date of publication: October 2022
Australian Capital Territory
ISSN 2208–5335
Subject to acknowledgement, noting the ACT Judicial Council as author, extracts may be copied without the publisher’s permission.

Produced by the ACT Judicial Council, Canberra.
Design: Typeyard Design and Advertising Pty Ltd

Contents

• Welcome
• Council overview
• Lodging a complaint
• Complaints received
• Enquiries received
• Council members
• The Principal Officer and supporting staff

Contacting the ACT Judicial Council

Enquiries about this report or requests for other information should be directed to:

The Principal Officer

ACT Judicial Council

Post GPO Box 1884, CANBERRA ACT 2601

Telephone 02 5119 5550

Email principal.officer@actjudicialcouncil.org.au

Website actjudicialcouncil.org.au

The Judicial Council Annual Report 2021–22 is available on the website.

Welcome

Chief Justice Lucy McCallum, Head of Council

The Australian Capital Territory (ACT) Judicial Council (the Council) considers complaints about the behaviour or capacity of a judge of the ACT Supreme Court or a magistrate of the ACT Magistrates Court. The Council receives a small number of complaints from across the community. The Council’s complaint-handling role contributes to a fair and accountable judiciary for the ACT.

In 2021–22, the operations of the ACT courts continued to be affected by COVID-19 and this may have led to fewer complaints made to the Council, compared to before COVID-19. All complaints received during this reporting period were from members of the public. No complaints were received from legal practitioners or formally referred to the Council by the ACT Attorney-General.

I take this opportunity to thank my fellow Council members for their efforts this year. I would also like to acknowledge my predecessor, Chief Justice Helen Murrell, for her professionalism and wisdom in her role as Chair of the Council until her retirement as Chief Justice in March 2022.

In addition, I also wish to acknowledge the work of the Acting Principal Officer, Penny McKay, and her staff to support the Council in the performance of its functions. Penny McKay held the role for 11 months following the retirement of Michael Manthorpe PSM on 30 July 2021.

Council overview

The Council is established by operation of Part 2A of the Judicial Commissions Act 1994 (ACT) (the Act) and consists of the Chief Justice of the ACT Supreme Court, the Chief Magistrate of the ACT Magistrates Court, an appointed legal practitioner, and an appointed member of the community. The Council is supported by a Principal Officer.  Iain Anderson commenced as the Principal Officer, and Commonwealth and ACT Ombudsman, on 1 August 2022.

Penny McKay, the acting Commonwealth and ACT Ombudsman, held the role of Principal Officer in 2021–22.

The Council can consider complaints about the behaviour and the physical or mental capacity of a judge of the ACT Supreme Court or of a magistrate of the ACT Magistrates Court.

The Council’s functions include:

• receiving complaints about judicial officers
• examining complaints about judicial officers
• referring complaints to the ACT Executive or the relevant head of jurisdiction, and
• responding to enquiries about the complaint process.

The Council met 4 times in 2021–22.

Preliminary examination

When a complaint is received about an ACT judicial officer, the Council must conduct a preliminary examination. Depending on the outcome of the preliminary examination, the Council may take the following actions:

• early dismissal of the complaint
• refer the complaint to the head of the relevant jurisdiction, or
• proceed to an examination of the complaint by the Council.

The Council is required to conduct its preliminary examinations in private, where possible.

Early dismissal

After conducting a preliminary examination of a complaint, the Council may dismiss the complaint if it is satisfied of one or more of the following:

• The complaint is frivolous, vexatious or not in good faith.
• The subject matter of the complaint is trivial.
• The matter complained about happened at too remote a time to justify further consideration.
• There is or was another satisfactory means of redress or dealing with the subject matter of the complaint.
• The complaint relates to the exercise of a judicial function or decision that is subject to appeal or review rights.
• The complaint is about a person who is no longer a judicial officer.
• The complaint is one that the Council is not required to deal with.
• Further consideration of the complaint is unnecessary or unjustifiable.

If the Council decides to dismiss a complaint for any of the above reasons, the judicial officer and the complainant will both be told of this outcome.

Referring a complaint to the head of jurisdiction

If after a preliminary examination, the Council is satisfied a complaint is partly or wholly substantiated, but it does not justify the Council’s further attention by examination, the complaint may be referred to the relevant head of jurisdiction. The complainant will be notified of this outcome by staff assisting the Principal Officer.

The heads of jurisdiction in the ACT are the Chief Justice of the ACT Supreme Court and the Chief Magistrate of the ACT Magistrates Court, who are also members of the Council. The Council’s referral can include recommendations about what steps could be taken to deal with the complaint.

Examination by the Council

If the Council is satisfied after a preliminary examination that a complaint is partly or wholly substantiated, and it justifies further attention by the Council, the Council will proceed to examine the complaint. In doing so, the Council must consider whether the complaint justifies parliamentary consideration of the removal of the judicial officer.

If the Council concludes that the complaint justifies parliamentary consideration, the Council must make a recommendation to the ACT Executive that it appoint a judicial commission to examine the complaint further.

If the Council considers the complaint does not justify its further consideration or parliamentary consideration, the Council will then refer the matter to the head of the relevant jurisdiction.

The complainant will be advised of the outcome of the examination.

The Council must conduct examinations in private, where possible – like preliminary examinations. The Council must notify the ACT Attorney-General when it starts an examination and inform them of the outcome once it is finalised.

Lodging a complaint

Anyone can make a complaint to the Council, including members of the public, legal practitioners, and members of organisations such as the Law Society, Bar Association, and Legal Aid. The ACT Attorney-General can also refer complaints to the Council.

Complaints can be made by using the complaint form available on the ACT Judicial Council website or by sending the Council a letter or email.

Complaints must:

• be in writing
• provide the name and address of the person making the complaint
• identify the judicial officer who is the subject of the complaint, and
• provide details about the complaint.

The Principal Officer and their staff receive complaints and enquiries on behalf of the Council. When a complaint is received, staff members will tell the relevant judicial officer that a complaint has been made and give them an initial opportunity to comment. Staff will then help the Council to conduct the preliminary examination of the complaint.

Complaints received

In 2021–22, the Council received 6 complaints from 4 individual complainants about 5 ACT judicial officers. All complaints were made to the Council by members of the public.

Complaints included allegations of bias, failure to give a fair hearing, discourtesy, incorrect application of the law, bullying, and intimidation.

Complaints also included allegations of incorrect decisions. Where these allegations were made, the Council advised the complainant that they may wish to seek legal advice about their appeal options as the Council has no ability to examine the merits of, or change, a judicial officer’s decision.

Following a preliminary examination of the complaints, the Council decided to dismiss 7 complaints under s 35B of the Act, which allows for early dismissal of complaints, including 4 complaints carried over from the previous reporting period.

At 30 June 2022, the Council had 3 open complaints.

In 2021–22, consistent with previous years, all complaints were received from self-represented litigants facing difficulties navigating court processes.

Enquiries received

In 2021–22, the Council received 21 enquiries from members of the public, separate to the 6 complaints. This is an increase on the 18 enquiries received in the previous reporting period. Several enquiries related to possible complaints where the person was seeking more information about the process, before deciding not to proceed. Most enquiries related to complaints about aspects of the court process that the Council has no jurisdiction to consider. In these instances, complainants were provided with information about other complaint pathways.

Council members

The Council consists of the ACT Chief Justice, the ACT Chief Magistrate, an appointed legal practitioner, and an appointed member of the community.

Chief Justice Lucy McCallum: Chief Justice of the Supreme Court and Head of the Council

On 8 March 2022, Lucy McCallum was sworn in as the sixth Chief Justice of the ACT Supreme Court.

Her Honour attended the University of New South Wales (UNSW) where she graduated in 1986 with a Bachelor of Laws and a Bachelor of Arts, majoring in philosophy. She worked in Sydney as a solicitor in commercial litigation for 18 months at what was then Mallesons Stephen Jaques, before taking a position as a prosecutor in the ACT in 1988. In 1990 her Honour spent a year as a trial advocate with the Queensland Office of the Director of Public Prosecutions. She became a barrister in Sydney in 1991 and took silk in 2005.

In 2008 her Honour was appointed a judge of the Supreme Court of New South Wales in the Common Law Division. She was the Defamation List judge from 2014 to 2018. In 2016 her Honour was appointed Chair of the NSW Judicial Commission Ngara Yura Committee which aims to increase awareness among judicial officers about contemporary Aboriginal and social cultural issues, and their effect on Aboriginal people in the justice system. In February 2019 her Honour was elevated to the New South Wales Court of Appeal where she sat on a wide range of matters until her Honour’s appointment as Chief Justice of the Supreme Court of the Australian Capital Territory

Helen Gay Murrell: Former Chief Justice of the Supreme Court and Former Head of the Council

Helen Murrell was sworn in as the Chief Justice of the ACT Supreme Court on 28 October 2013 and retired on 4 March 2022.

Her Honour holds a Bachelor of Arts and Bachelor of Laws (UNSW) and a Diploma of Criminology (University of Sydney). She was admitted as a solicitor of the Supreme Court of New South Wales (NSW) in 1977.

Her Honour practised as a solicitor before being called to the bar in 1981. In 1995, she was appointed Senior Counsel in NSW. From 1996 to 2013, her Honour was a Judge of the District Court of NSW. During this period, her Honour also held positions as President of the Equal Opportunity Tribunal of NSW (later, Deputy President of the Administrative Decisions Tribunal) and the first Senior Judge of the Drug Court of NSW.

Her Honour has longstanding interests in therapeutic jurisprudence and judicial education.

Chief Magistrate Lorraine Walker

Chief Magistrate Lorraine Walker holds a Bachelor of Arts and Laws from the University of Sydney. Her Honour was admitted as a solicitor in NSW in 1987, working briefly as an employed solicitor until joining the Royal Australian Air Force later that year. She served as a legal officer for 3 years in Melbourne and the Northern Territory before relocating to her birthplace – the United Kingdom.

Her Honour was employed by the Crown Prosecution Service as a prosecutor from 1990 to 1996. On returning to Australia, she practised as a solicitor in the ACT for one year before being made a partner in a national law firm. She started at the ACT Bar in 2000.

Her Honour was appointed to the ACT bench in 2010 with a dual commission as Coroner and Magistrate. She was subsequently appointed Chief Coroner and Chief Magistrate in 2011.

In August 2019 her Honour was appointed an Acting Judge of the Supreme Court for 12 months to establish the ACT’s Drug and Alcohol Sentencing list but resumed as Chief Magistrate in April 2020, in light of the impact of COVID-19.

Martin Hockridge

Martin Hockridge was appointed to the Council as the legal practitioner representative in February 2020.

Martin was admitted as a lawyer in 1982 and has practised in the ACT for more than 30 years. He was a long time criminal defence lawyer before moving to policy and administration as Deputy Chief Executive Officer at Legal Aid ACT. After leaving Legal Aid, he was president of the ACT Law Society for 3 years.

Martin has been a Director of the Law Council of Australia and is currently a member of the Legal Practitioners Admission Board and continues to be involved in the work of the Law Society. His work interests include access to justice, the criminal law and human rights.

Clare Doube

Clare Doube was appointed to the Council as the community representative in April 2021. Clare is a human rights consultant and nationally accredited mediator. Much of her work focuses on strategy and evaluation, across varied areas, including social safeguards, criminal justice, civic space, and gender. She has strong connections in the Canberra community, including through her past work as Executive Director of Companion House and through consultancies for ACT community organisations and the ACT Government.

The Principal Officer and supporting staff

The Council is supported by a Principal Officer. The acting Principal Officer in 2021–22 was Penny McKay.

The Principal Officer and their staff are the point of contact for complainants. They facilitate communication between a complainant and the Council.

Penny McKay, Acting Principal Officer

Penny McKay was acting Principal Officer from 1 August 2021 to 31 July 2022, following the retirement of former Commonwealth Ombudsman Michael Manthorpe PSM. Penny was the acting Commonwealth Ombudsman and the acting ACT Ombudsman. Penny undertook the role of acting Principal Officer as one of her functions as the acting Commonwealth and ACT Ombudsman.

In her substantive role, Penny is the Deputy Ombudsman, having been appointed for a five‑year term on 23 July 2020. Penny’s 25-year public service career spans state, territory and Commonwealth jurisdictions and includes roles as a Commonwealth, state and territory prosecutor in the ACT, Northern Territory and Queensland; the position of Senior Assistant Director of Legal, People Smuggling and Human Trafficking at the Commonwealth Director of Public Prosecutions Office; General Counsel at the Australian Commission for Law Enforcement Integrity; and a secondment to the Royal Commission into the Protection and Detention of Children in the Northern Territory.

Penny has extensive experience in areas of criminal law policy, investigations and prosecutions, integrity and oversight.

Prior to her appointment, Penny was the First Assistant Secretary of the Integrity, Security and Assurance Division at the Department of Home Affairs and was responsible for the Department’s Integrity and Professional Standards, Security, and Audit and Assurance Branches.

Penny holds a Bachelor of Law and a Bachelor of Business (Management) and is admitted to practise as a solicitor of the Supreme Court.

Louise Macleod

Louise Macleod has assisted the Principal Officer to support the Council since December 2019.

Louise joined the Office of the Commonwealth Ombudsman in July 2016. Her public service career spans more than 17 years in various leadership roles conducting investigations, compliance monitoring, and dispute resolution in government agencies including the Department of the Prime Minister and Cabinet, the Administrative Appeals Tribunal, the Australian Competition and Consumer Commission, the Energy and Water Ombudsman (Victoria) Limited, the Queensland Department of Justice and Attorney‑General's Dispute Resolution Centres, and the Family Court of Australia. Before this, Louise spent 7 years as an officer in the Australian Army and served on operations in East Timor.

Louise is a mediator and is admitted as a solicitor in the ACT.

Jennifer Furze

Jennifer Furze has assisted the Principal Officer to support the Council since February 2020.

Jennifer joined the Office of the Commonwealth Ombudsman in March 2019. She is an Assistant Director in the ACT Reportable Conduct and Freedom of Information team, in addition to her role assisting the Principal Officer.

Jennifer has a passion for integrity, oversight, and public administration. She has previously held roles with the Department of Agriculture and Water Resources developing export control legislation, and the Attorney‑General’s Department working on Australian family law policy and international matters under the Hague Convention on the Civil Aspects of International Child Abduction.

Jennifer was admitted as a solicitor to the Supreme Court of the ACT in 2007.