As the Tasmanian government blindly pushes on to suspend Justice Gregory Geason, law columnist HUGH SELBY says further action by the Tasmanian parliament would not only erode public confidence in the courts, but would be a disproportionate response as there is no problem to be solved. It is a means to nothing.

IN Tasmania the Supreme Court (Judges’ Independence) Act has been in place since early 1857, more than enough time for its generations of politicians to grasp its short principles. 

So short, that the entire Act is here: 

An Act for better securing the independence of the judges of the Supreme Court.

Whereas the independence of judges is essential to the impartial administration of justice, and one of the best securities to the rights and liberties of Her Majesty’s subjects; and it would conduce to the better securing of such independence if the power of suspension or a motion by the Local Government were further limited:

Be it therefore enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, that:

1. Judges removable only on address by Parliament

It shall not be lawful for the Governor, either with or without the advice of the Executive Council, to suspend, or for the Governor to amove [an archaic word meaning to dismiss from office or station], any judge of the Supreme Court unless upon the address of both Houses of Parliament.

It is this law that stands in the way of, or supports, the Tasmanian government’s ill-considered recall of parliament to deal with its proposed motion to suspend Supreme Court Justice Gregory Geason from his position.

Obviously that government has had advice that this short law is all that it needs to go about its publicity seeking stunt.

It is a stunt, and nothing else, because the judge has stood aside from his position (that is, accepted a voluntary suspension and stated in writing his intention to abide by it), and his matters, being alleged “family violence”, will come before the Tasmanian courts in the usual way.

If thought appropriate, a judicial officer from interstate will be asked to hear and determine the charges against him.

In the absence of any perception that the judge has received, or will receive the benefit of any form of “cover up” (save for the widely reported absurd “private” first appearance in court), what is the purpose of this week’s motion to suspend?

If it’s to show the community that the age of “turning a blind eye” to sexual misconduct has passed, then it’s unnecessary.

If it is to turn attention away from the government’s other problems, such as the proposed stadium, its wafer-thin majority, the non-performance of the Integrity Commission, its failure to set up a credible inquiry into how the confidential interviews of lawyers and their imprisoned clients were unlawfully recorded over months by police, and the commitment “until hell freezes over” to avoid any inquiry into the wrongful conviction of Sue Neill-Fraser – then, alas for them, this is simply adding another problem to the list.

Those advising the government may have told them that the parliament is sovereign, that its conduct cannot be fettered by any court, and that if they can persuade a majority in both the Assembly and the Council to pass a motion to suspend the judge that the governor will duly do so.

The small problem of the clear purpose of the Act to maintain judicial independence, as stated in its preamble, quoted above, has been ignored.

The government, however, has other legal problems that flow from Tasmania being a part of the Commonwealth. The 1857 Act predates our Federation by decades and the law has evolved.

How our federal system affects state courts

In 1996 the High Court in Kable [1996] HCA 24, by a majority of four to two, established that while a state parliament could not be fettered, nevertheless a state court (and by implication, its judges), since it also exercised Commonwealth law functions, could not be treated in a manner that lead to a lack of public confidence in the state court.

Justice McHugh put it clearly [see paras 21 and 25]:

“Public confidence in the exercise of federal jurisdiction by the courts of a State could not be retained if litigants in those courts believed that the judges of those courts were sympathetic to the interests of their State or its executive government”, and,

“…although New South Wales [like Tasmania] has no entrenched doctrine of the separation of powers and although the Commonwealth doctrine of separation of powers cannot apply to the State, in some situations the [Commonwealth Constitution] may lead to the same result as if the State had an enforceable doctrine of separation of powers. This is because it is a necessary implication of the Constitution’s plan of an Australian judicial system with State courts invested with federal jurisdiction that no government can act in a way that might undermine public confidence in the impartial administration of the judicial functions of State courts. If it could, it would inevitably result in a lack of public confidence in the administration of invested federal jurisdiction in those courts. State governments therefore do not have unrestricted power to legislate for State courts or judges” [emphasis added].

As I pointed out in an earlier article, a suspension in response to an allegation opens up unlimited opportunities for a government to control the courts by the making of allegations against any judge who it fears might find against it. 

I am reminded of the infamous “Thief taker General” in early 18th century England. Jonathan Wild procured falsely sworn statements against persons who were then convicted on that false testimony. This was at a time when defendants could not speak in their own defence. 

There is no substitute for a proper hearing before taking action. In Justice Geason’s case the only hearing should be the criminal one. That hearing will make findings of proved beyond reasonable doubt, or not. 

If the former then there is “proven misconduct” and it is then proper for the parliament to consider whether that misconduct entails that he should be removed from office.

Meantime any action, such as a motion to suspend, adversely affects the confidence of the Tasmanian community in its courts.

However, that does not mean that it’s game, set and match for Justice Geason. 

Proportionality and means and ends

Kable was about a law passed by the NSW government to ensure that Mr Kable remained in prison after his sentence was served.

The particular law was disallowed by the High Court; however, in the decades since the states have achieved legislative models that permit people being detained for long periods after serving their sentence.

The lessons from those legislative developments were applied in the Commonwealth parliament in the last couple of weeks as the government scrambled to find a way to re-detain at least some of those released after the High Court’s November decision in NZYQ [2023 HJCA 37] that “indefinite detention” as used against some “would be migrants” since the 2004 case of Al-Kateb, was unlawful.

Practically the court in NZYQ returned to a pre- Al-Kateb approach, namely: “A Commonwealth statute which authorises executive detention must limit the duration of that detention to what is reasonably capable of being seen to be necessary to effectuate an identified statutory purpose which is reasonably capable of being achieved” [para 41].

This was a principle expounded in the 1992 case of Lim (1992) 176 CLR 1.

Six members of the court agreed that: “The principle in Lim necessitates that the purpose of detention, in order to be legitimate, must be something distinct from detention itself “[para 49]

The seventh judge, Justice Edelman, joined in the overturning of Al-Kateb, but took another approach – one that has not been accepted by the High Court – described in the judgement as “ a novel conception of punishment which concerns forms of detention that have been described as ‘prima facie’ punitive, or which have been deemed to be punitive, because the detention imposed is disproportionate to, in the sense of being not reasonably capable of being seen as necessary for, a legitimate purpose. In this sense, the law is treated as punitive because it employs means that are disproportionate to its legitimate purpose” [paras 51,52] (italics added)

The decision then points out that “there is a difference between a purpose and its implementation.It is a difference between ends and means” [para 54] (emphasis added).

Our “common law” (that being judge-made law) evolves case by case. What we have here, almost by chance, is that the High Court’s attention to “means and ends” and one judge’s attention to “disproportionality”, when dealing with 2023 Commonwealth indefinite detention in NZYQ, is linked to its 1996 decision, also about indefinite detention, in Kable. 

Justice Geason is already suspended and has agreed to that status continuing until the charges are determined; that is, the end has been achieved (per NZYQ).

Further action by the Tasmanian parliament would not only erode public confidence in the courts, but would be a disproportionate response as there is no problem to be solved. It is a means to nothing.

Applying Kable there is a constitutional issue which means that the High Court has jurisdiction to hear an application as to the constitutionality of the proposed suspension of Justice Geason.

If this matter goes to the High Court then all other states and territories can be heard. I would expect Tasmania to be a lonely voice, very lonely.

If the above approach is right (and others will have a contrary view) then any suspension would be wrong. Whether it is overturned from its passing, or only from the date when the High Court finds it wrongful is a separate issue. 

Meantime, the question for Justice Gleason – apart from persuading sufficient members of the Legislative Council (where there are a number of independents) to vote against the proposed motion to suspend so as to defeat it – is whether or not to approach the High Court now for a Declaration that such a motion is in breach of the Commonwealth Constitution.

Once upon a time, the making of such an application would lead to a government agreeing to do nothing until that application for a Declaration was determined.

But that was in a bygone age: let us hope that common sense still prevails. After all, why turn a rush of political blood into a full-blown contest as to whether Tasmania does or does not want to have a credible parliament and Supreme Court.

Former barrister Hugh Selby is our legal affairs commentator. His free podcasts on “Witness Essentials” and “Advocacy in court: preparation and performance” can be heard on the best known podcast sites.

High risks as parliament pursues judge