The debate that occurred in parliament argued that, on the one hand, the Judicial Commission of NSW had found Judge Vince Bruce incapable but on the other hand, he shouldn’t be punished for a mental illness that was now under control. The majority of parliament found the judge to be capable and, as a result, he was not dismissed.

Here is a summary of the debate in the Upper House abut Justice Vince Bruce. Politicians who spoke included the NSW Attorney General, the leader of the Opposition, Reverend Fred Nile, Ian Mac Donald and Franca Arena.

LINK

51st parliament, 25 June 1998

The Hon. J. W. SHAW (Attorney General, Minister for Industrial Relations, and Minister for Fair Trading)

I move:

1. That the following Address be adopted and presented to His Excellency the Governor seeking the removal from office of the Honourable Justice Vince Bruce of the Supreme Court:
To His Excellency the Honourable Gordon Samuels, Companion of the Order of Australia, Governor of the State of New South Wales in the Commonwealth of Australia.

May it please Your Excellency -
We, the Members of the Legislative Council of the State of New South Wales, in parliament assembled, have the honour to communicate to Your Excellency the following Address adopted by the House this day:

That this House, having considered:

(a) the Report of the Conduct Division of the Judicial Commission of New South Wales concerning complaints against the Honourable Justice Vince Bruce, dated 15 May 1998; and

(b) the written response of the Honourable Justice Vince Bruce to the Report of the Conduct Division of the Judicial Commission, dated 26 May 1998, seeks the removal from office by His Excellency the Governor, under section 53 of the Constitution Act 1902, of the Honourable Justice Vince Bruce, a Judge of the Supreme Court of New South Wales, on the ground of incapacity.

2. That a copy of the address made by the Honourable Justice Vince Bruce at the Bar of the House on Tuesday, 16 June 1998, as to why he should not be removed from office on the grounds set out in the Report of the Conduct Division, be also transmitted to the Legislative Assembly.

…I move this motion in pursuance of public duty so that this House can formulate an opinion on the report of the Conduct Division of the Judicial Commission concerning the Hon. Justice Bruce, a Judge of the Supreme Court of New South Wales. I do so without ill will or partisanship. Indeed, I do so with reluctance and sadness. I am a committed supporter of judicial independence from the Executive and the Legislature, but the separation of powers does not mean that a judicial officer found to be incapable of exercising the duties of the office can remain in that office. It does not deny a parliamentary duty to deal with such a finding, a duty…entrenched in the New South Wales Constitution by referendum in 1995.

…parliament has set up by legislation a process to consider complaints against judges and we must now all exercise a statutory and public duty in this regard. Today I am continuing in the performance of that duty in fulfilling the statutory obligations imposed by the Constitution Act and the Judicial Officers Act 1986.

…It would be a tragic day for New South Wales if the judge were removed for political reasons, for this would be anathema to our system of government - the Westminster system - in which the judiciary has a crucial independence from the Parliamentary and executive arms of government….We act today as a parliament, not as members of political parties and not for political ends. Each of us must make his or her own decision on this matter; it must be an objective decision based on all of the facts, the evidence, the law and our legal obligations to uphold the law.

…I emphasise that there is no question of misbehaviour in this case. The Conduct Division of the Judicial Commission concluded - and the Court of Appeal upheld the legal validity of the finding - that there was an incapacity to perform judicial duties. It was argued that the current incapacity was not caused by depression alone, but rather the judge's inability to complete judgments in a timely manner which has, in this case, come to be called the personality trait of procrastination.

…although the incapacity has been diminished to some extent by the relieving of the severe depression. We are not passing judgment on the judge because he was ill. We are considering whether we agree… with the majority of the Conduct Division of the New South Wales Judicial Commission that Justice Bruce's inability to deliver speedy justice, even when given time off from hearing cases to write judgments, represents an incapacity.

Parliamentary involvement in the removal of judges of superior courts was a principle of great importance in English parliamentary and judicial history. In relation to the removal of judges, the Act of Settlement in 1700 was the culmination of a long struggle concerning the contest for power between the English parliament and the King. That Act provided that, during good behaviour, judges could not be removed, nor their salaries reduced, except on an Address of both Houses of parliament Therefore the concept of removing judges only on an Address to the King by both Houses of parliament has, since 1700, been a fundamental feature of the Westminster system of government.

…. Section 53 of the Constitution Act sets out the procedure for the removal of a judicial officer. Section 53(2) provides:
. . . the holder of a judicial office can be removed from the office by the Governor, on an address from both Houses of parliament in the same session, seeking removal on the ground of proved misbehaviour or incapacity.

… Section 41 of the Judicial Officers Act provides that a judicial officer may not be removed from office unless the Conduct Division of the Judicial Commission has presented a report in which the division expresses an opinion that the matter referred to in its report could justify parliamentary consideration of the removal of the judicial officer from office. So the Judicial Commission's report - a judgment by the judicial officer's peers - is the trigger, a necessary precondition for deliberations by the Parliament And when that trigger is activated, it is important for the Parliament to take the Judicial Commission's report seriously.

The proper interrelationship between the Parliament, the executive and the judiciary which emanates from the Westminster system of government clearly gives parliament the important role of being the ultimate supervisor of the judiciary, in the sense of dealing with dismissal from office.

.. the Parliament must consider in the public interest whether a judicial officer should be removed from office…This outline was set out in the Chief Justice's judgment in the proceedings involving Justice Bruce as follows:

1. A complaint was made to the Judicial Commission concerning the "ability or behaviour" of Justice Bruce.
2. In December 1997 the members of the Judicial Commission of New South Wales appointed a panel of three persons to constitute the Conduct Division for purposes of exercising the functions of a division in relation to a complaint….
5. The Conduct Division had then to conduct an examination of the complaint. It decided to conduct a hearing.
6. The commission had power to classify a complaint as "serious" in the following circumstance: "If the grounds of the complaint, if substantiated, could, in its opinion, justify parliamentary consideration of the removal of the judicial officer complained about from office."…
9. In a report dated 14 April 1998 the Conduct Division decided to extend the original complaint to 27 additional matters. It also decided to reclassify the original complaint…together with a further complaint that had been referred to it, as "serious" in the sense that I have identified….
11. On 15 May the Conduct Division completed a report entitled "Report of the Conduct Division to the Governor Regarding Complaints against The Honourable Justice Vince Bruce"….

…as a House we must decide whether we agree with the Conduct Division that Justice Bruce's incapacity, manifested in a character trait of procrastination, continued despite the alleviation of his depression. We must determine whether we agree with the Conduct Division that his pattern of behaviour did not change, so that the incapacity to perform his judicial duties continued following that alleviation.

The Conduct Division found what it called "an indisputably demonstrated incapacity" …. In essence, two of the three members of the Conduct Division considered that the lack of adherence by Justice Bruce to the schedule he had prepared, and his failure to notify the Chief Justice of his failure, were evidence that the incapacity that Justice Bruce indisputably displayed until February 1998 in fact continued as a result of his habit of procrastination, notwithstanding the evidence given that he has recovered from the incapacitating factor of his depression. …That led to the following conclusion:

It is the Division's view these substantiated complaints against Justice Bruce could justify parliamentary consideration of his removal from office….there has been proved an incapacity to perform judicial duties judged by any reasonable standard . . .
… the Court of Appeal unanimously dismissed the proceedings instituted by Justice Bruce.
…Justice Bruce disposes of the procrastination in this way:
I would respectfully say that the finding that I procrastinate, which was arrived at by the majority, is just too silly for words.

In his written response to parliament, Justice Bruce summarises the case in these terms:

It is a case of alleged partial incapacity on health grounds. That is, I submit, incorrect, as we know from both the Judicial Commission's report and the Court of Appeal's judgment that I have already summarised.

…. While Justice Bruce's statements about depression have led to a valuable public discussion about this serious and debilitating illness, and aroused an understandable sympathy, they are strictly irrelevant to the question before us today. However, we, as a House, with a statutory responsibility to both the justice system and the public, must consider whether, even after the alleviation of his depression, Justice Bruce was still unable to fulfill adequately his judicial duties.

Under the heading "The Procrastination Issue" the Chief Justice noted that the Conduct Division referred to Justice Bruce as having an "ingrained personality attribute of procrastination".

…During the period of his depression Justice Bruce continued with a broad range of non-judicial activities. These activities range from being Chairman of the Law Foundation for a period of this time, Chairman of the Asthma Foundation of New South Wales, Chairman of the Advisory Committee of the Technology Risk Management Centre, member of the International Olympic Committee's Court of Arbitration for Sport, member of the special court established for the Atlanta Olympic Games, and being involved in a committee to review the appointment of Dr Arbeit as the national coach for Athletics Australia.

…Justice Bruce also made mention of judges being overworked, with the obvious implication that this may result in judgments being reserved for a substantial period. With respect, the facts do not bear this out. The vast majority of judgments are delivered expeditiously, notwithstanding the frequent heavy burdens carried by judicial officers in this State …I now turn to the relevance of the Conduct Division report. Another inaccurate statement in Justice's Bruce's address to the House on 16 June was his statement that:

"The findings of the Conduct Division are completely irrelevant to you, except in so far as they constitute a trigger which enables both Houses of this Honourable parliament to consider the question of my removal."

…This House must consider those findings and determine whether Justice Bruce should be removed from office on the basis of those findings. …if the Conduct Division decides that a serious complaint is wholly or partly substantiated, it may form an opinion that the matter can justify parliamentary consideration of the removal of the judicial officer complained about from office.

Section 29 (1) requires the Conduct Division in relation to a serious complaint to present to the Governor a report setting out the division's conclusions. Section 29 (2) requires that if an opinion has been formed under section 28 that the matter could justify parliamentary consideration of the removal of the judicial officer from office, the report shall set out the division's finding of fact and that opinion. I do not consider that the findings of fact by the Conduct Division are irrelevant to the considerations of this House. To the contrary, I consider them to be most relevant and they should be given appropriate weight. I am not sure what Justice Bruce expects this House to base its decision on if it is not the report of the Conduct Division.

The Court of Appeal had to determine whether there were reasonable grounds for the Conduct Division reaching the conclusions that it did. I could perhaps summarise the court's decision by quoting the Chief Justice, who said:

In accordance with the strict legal tests applied in this area of law, there was before the Division probative material capable of supporting the conclusion that His Honour's incapacity continued after his medical condition had been alleviated.

It is true, of course, and I readily concede, that the Court of Appeal was not hearing an appeal from the Conduct Division's decision. It did not have to form the view that Justice Bruce's conduct demonstrated an incapacity for judicial office. But it did have to form a view that there was evidence available from which the Conduct Division could reach the conclusions it reached….

While I am sure there have been other instances of serious delay in relation to other judicial officers, Justice Bruce's case is an exceptional one. If there are complaints about other judges, they too can be dealt with by the Judicial Commission . It is open for any other litigant to refer any complaint about the judiciary to the New South Wales Judicial Commission.

It is in the public interest that this parliament determine as expeditiously as possible whether there is the relevant incapacity in Justice Bruce so as to warrant his removal from office immediately. …
the Conduct Division, or at least two members of it, considered that incapacity to satisfactorily perform the judicial function remained, notwithstanding the medical condition of Justice Bruce that had plateaued with treatment…

I proffer the view to this House that Justice Bruce is incapable of performing judicial duties due to his inability to provide timely justice and that he should be removed by Address of both Houses of parliament to the Governor "….Removal is not a punishment but a protection of the public and the system of justice."

I urge honourable members in the public interest, and particularly in the interests of future litigants in the New South Wales Supreme Court, to make an objective decision based on all of the documentary evidence and the proven facts and with earnest consideration of the issues arising in this case - and to make their decision on that basis and on that basis alone.

The Hon. J. P. HANNAFORD (Leader of the Opposition) [3.31 p.m.]:
I support the motion moved by the Attorney General. I do so with a heavy heart because I have known Vince Bruce for 25 or 30 years. Most people who have practised as a solicitor in this city would have had dealings with him... I support the motion with a heavy heart also because it was I as Attorney General who recommended to the Governor that on 4 July 1994 Vince Bruce be appointed a judge of the Supreme Court.

There is absolutely no doubt that Vince Bruce is a lawyer of outstanding capability. His appointment in 1994 was universally welcomed. He was held in the highest of professional regard. Any person who has dealt with Vince Bruce outside the legal environment is aware of the impression he makes as an individual. He has great depth of heart, a great sense of humanity and a great commitment not just to the law but also to the community. But members of this House have to put aside all those thoughts and feelings because we have a constitutional responsibility to act based upon the information that is placed before us.

I recall that during his address to this House Justice Bruce said to us, "You must be the judges and you must do as judges do. Look into your hearts and do right." I agree with that comment, but members of parliament have the responsibility to do right by the community and to protect the community. In doing so we must act fairly towards Justice Bruce, but our obligation is to decide this issue in the interests of the total community.

…From the debate I have heard it seems that two issues weigh on the minds of members. The first is whether the evidence justifies a finding that Justice Bruce exhibited a personality trait of procrastination. ...However, the facts clearly sustain the finding by the majority of the judges that Justice Bruce had a personality trait of procrastination. Indeed, the evidence shows that that personality trait existed probably from the time he was an acting judge in 1992, and it was further manifested in 1997.

The issue has been raised as to whether it is appropriate for the House to remove from judicial office a judge who was acknowledged as suffering from depression…. I advocate to the House that if we are to sustain the integrity and future role of a Judicial Commission - the task of which is to undertake these investigations and to report to the House - we should accept the findings of the Judicial Commission unless we can be satisfied that the findings of the Judicial Commission are manifestly wrong. …I believe that as members of parliament we have a duty to the community to ensure that members of the judiciary deliver judgments in a timely fashion. It is for that reason that I support the motion.

Reverend the Hon. F. J. NILE:
…If this is the first time a motion has been moved to remove a Supreme Court judge it raises a far more serious issue, that is, the independence of the judiciary. This motion might be agreed to in both Houses, but I certainly will not be voting for it. ..One of the serious matters before the House is the independence of the judiciary. We all want judges in this State who will be fearless when making judgments, especially when they are hearing cases involving the actions of governments. It is not unusual for judges to hear cases in which citizens have brought matters against a government or a government department. We want judges who are able to make decisions without fear or favour; who do not have to look over their shoulders in case they upset the Executive Government of whatever political persuasion.

Judges must be totally independent and must be able to make decisions without fear or favour. If this House votes today to remove Justice Vince Bruce for reasons that are not justified, we will send a chill through all the judges in this State. …I say that Justice Bruce is not exceptional and one must look to the system which is in place as the source of the problem not the individual judges, and in particular not Justice Bruce. ….Although it was clear that he had problems and had the character trait of procrastination, he was given the most complex cases - and the reason for that was that he was regarded as a brilliant judge.

It is not fair to accuse him of being slow to deliver judgments. He was also given class actions, which even the layman would acknowledge are most difficult cases. The judicial system in this State should be criticised for allowing Justice Bruce to be exploited by the system.

The Hon. I. M. MACDONALD:
...There can be no doubt that we must address the problem of delays in the delivery of justice, but in doing so we must be careful not to conduct a crusade and victimise a single judge. …I am embarrassed by this motion. I would have thought that a motion for the dismissal of a judge would be based on two particular elements of the charter of the Judicial Commission. One of those elements would be corruption or misbehaviour of a serious nature. If the motion before the Chamber were to do with corruption or serious misbehaviour, I would be far more comfortable dealing with it than I am dealing with a motion calling for the dismissal of a judge on the basis that for some period of time the judge suffered from a mental illness.

I ask honourable members: What message will we send to the community if we dismiss a person who, on all the evidence available, suffered from mental illness at the relevant time? I think the message would be intolerable. We would send to every employer in this country the message: if you have an employee who suffers mental illness at any point of time, the first thing you should do is sack that person, regardless of whether the condition has been treated and is being controlled by some means.

…That would be a clear-cut travesty of justice for that individual and a travesty of justice for the entire judiciary - a judiciary that is meant to be independent of the Executive Government. I do not know how any honourable member opposite could say that to be dismissed by parliament is not one of the most dramatic punishments that could be exacted upon a judge. I cannot think of a worse punishment….Dismissal would strip Justice Bruce of his entitlements, humiliate him, then destroy him. This House would be dismissing a judge who, on all the evidence, suffered from depression in the past. Evidence that Justice Bruce's medical condition has been resolved or has improved is uncontradicted. I have not heard any evidence presented in this House this afternoon that proves that he continues to suffer from that condition.

It is agreed all round that Justice Bruce's condition has now resolved itself for the better. The evidence is that his medical condition has been much-improved for about four months, yet this House is being asked to dismiss him in that period of improvement. It is extraordinary that some newspapers and members of this House would support such a proposal….

….We must deal with the issue of procrastination very carefully indeed. As I have said, the evidence tends to suggest that it was part of Justice Bruce's depressive mental condition at that time anyway. It is important to consider the difference between the roles of the Conduct Division and the Parliament Much of the addresses of the Attorney General and the Leader of the Opposition were based on procrastination, and the media have also based their arguments for the judge's removal on procrastination….In many respects the Conduct Division is merely a filter.

…Judicial resources must be enhanced so that justice can be delivered quickly…This parliament has never removed a judge from office. Undoubtedly, over the past 174 years many deserved to be removed. This House must not set a precedent by removing a judge who had a depressive illness that has been cured. That would be an appalling message for this parliament to send to the community.

A number of judges whom all members would respect have rung me and expressed their absolute dismay at the course we are proposing to take…. They do not believe that the punishment fits the so-called crime. They believe that the proposed dismissal strikes at the heart of judicial independence and broadens the present ambit of reasonable grounds upon which the Parliament can remove a judge from office. ..The judges who made strong representations to me pointed out that there are delays in many major court cases… If judges need more time to write judgments why do we not implement a system that gives them more time? … That is a strong warning shot fired across the bows of this parliament at the more eager members who want to set this precedent today. He should be given an opportunity to establish whether over time he has been finally cured of his illness and can perform his duties. I ask members to consider a petition signed by 300 members of the bar that has been placed before the Parliament.

The petition states: We the undersigned members of the Bar many of whom have appeared before Justice Bruce and/or have been his colleagues in practice when he was at the Bar:

(A) strongly oppose His Honour's removal from office;

(B) urge the adoption of the views of by far the most experienced member of the Judicial Commission who dealt with His Honour's case namely retired judge Mr D. Mahoney, QC, in whose judgment, wisdom and compassion we place great store;

(C) submit that the foreshadowed sanction of removal from office:

• is out of all proportion to the complaints made against His Honour,
• pays insufficient regard to His Honour's efforts to remedy his delays, his undoubted integrity and goodwill and his desire to continue to serve the community
• having regard to the delays in delivering judgments which have been and are experienced with other judges, is unfairly discriminatory
• sets a precedence of which the legal profession, the Parliament and the community ought not be proud.

The list is extensive and absolutely overwhelming. It includes many of the most eminent members of the legal profession in this city. As thinking people concerned with justice for all, all members of this House should consider the import of those eminent persons signing that petition. I know many litigants have faced an appalling situation, which has been acknowledged by the judge and for which he has apologised. Their matters are now being dealt with in an attempt to clear the backlog. But I have never seen such a comprehensive list of members of the bar who have been prepared to sign a request to this parliament to desist from a certain course of action. All members should take heed and think carefully about their decision because there has been a strong reaction within the legal profession. I have said that State and Federal judges have rung me about this matter and have made it clear that we should not remove the judge.

All members should listen to what the petitioners are saying: that the punishment of removal from office is out of all proportion to the complaints made. A range of options are available to a judge or magistrate when deciding a matter in court. Unfortunately, we are in the difficult position of having to impose a massive penalty or do nothing. Sanctions are not available. We either vote for dismissal or remove the matter from the list.

In conclusion, a decision by this House to sack Justice Bruce would send a message to the community that we will penalise individuals who suffer from mental illness…..Justice Bruce is being penalised on the cusp of his improvement. Sacking him today would be a gross injustice and would be seen to be a gross injustice by any fair-minded member of the community.

…Today's proceedings are extraordinary in that the separation of powers is blurred by the Parliament having to make a decision about a member of the judiciary. Under section 53 of the Constitution it is the responsibility of parliament to make decisions, not to prevaricate or run away or let the media take control of the issues, as they have done. …It should be decided here today by the 41 members of this House.

As the Attorney said, members have a responsibility to provide the people of New South Wales with a justice system in which they can have confidence - one that works, that will deliver, that can make decisions.

…This is about the provision of justice in this State and the Parliament has a responsibility to ensure the delivery of justice. As a member of parliament I have a duty and responsibility to act in the best interests of the public and the judicial system that we protect as part of our Constitution. That is the reason that I support the motion of the Attorney General.

The Hon. FRANCA ARENA [6.07 p.m.]:
…Justice Bruce of the Supreme Court has already been humiliated by having to appear before the House to explain himself. It must have been agonising for him to have faced the Parliament… Thank goodness for democracy….I believe that we should review the system and not make a scapegoat of Justice Vince Bruce, who is most probably agonising while this debate is taking place.

...I do not say for a moment that such delays are acceptable. Rather, I say that Justice Bruce is not exceptional and one must look to the system which is in place as the source of the problem - not the individual judges, and in particular not Justice Bruce.

Debate adjourned on motion by the Hon. Jan Burnswoods.

This is a summary of the Hansard Report. For the full report, please click here. (Conduct of Justice Vince Bruce; Judgement Schedule, The Parliament of New South Wales, viewed 18 November 2002, <http://www.parliament.nsw.gov.au/prod/lc/LCHansArt51.nsf/Articles/1c3cbde733511df84a256648007eaed7>)