Complaint scheme comes with a big stick to whack errant judges ROBERT McClelland will today unveil plans for a new system of dealing with complaints against federal judges that is certain to provide a mountain of fodder for critics of the judiciary. Much of the detail of McClelland's plan is still to come, but the broad outline that was made available yesterday will be seen by some as too soft on judges. Such criticism is as misplaced as it is predictable. Based on the limited information that was made available yesterday, this scheme has one huge advantage: it has been accepted by the judiciary and is, therefore, very likely to achieve its goals. Without that critical element, no scheme for dealing with complaints about federal judges could hope to have any practical effect. The reason for that can be found in Chapter III of the constitution, which gives federal judges a form of independence that is superior to that of their state counterparts. The High Court has shown that anything that smacks of parliamentary inroads into Chapter III usually has a short lifespan. McClelland looks to have avoided that risk by making the core of this system the responsibility of the judges themselves. The system they have agreed to is based on the NSW Judicial Commission but without much of the legislative underpinning that is found in NSW. But does the absence of a legislative framework matter? In NSW, experience has shown that a decision to merely hold an inquiry into the conduct of a dubious judge is frequently all that is needed to encourage the judge to resign. McClelland's scheme gives the head of each federal court an extremely big stick that is clearly designed to achieve exactly the same outcome. Complaints would be handled by three-member conduct committees, including one non-judicial member. These committees would be convened by the head of each jurisdiction, but the attorney-general would be consulted about the non-judicial member. The findings of these committees would not be justiciable, but in the case of an adverse report a judge could be referred by the head of jurisdiction to the attorney-general. Parliament would then need to decide whether the judge should be removed on the existing constitutional grounds: proved misbehaviour or incapacity. At that point, the other half of McClelland's scheme would come to life. He plans to reintroduce last year's Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill. This scheme will create a set parliamentary structure that will avoid the ad-hocery that has been a hallmark of the way parliament has dealt -- or not dealt -- with complaints about federal judges. Remember the endlessly changing committees that were convened and then re-convened to inquire into the factual basis of the allegations against the late High Court judge Lionel Murphy? The net effect of all that was to leave the allegations against Murphy unresolved, while raising legitimate questions about whether he had been treated fairly by the process. A set parliamentary procedure established well in advance will reduce the risk that complaint-handling against federal judges could become politicised. Both components of the McClelland scheme are designed to bring more formality to complaint-handling. Much will depend on the detail, but on the information currently available, the scheme looks like it will work -- and avoid the sort of constitutional challenge that would accompany some of the alternatives.