On Friday 8 December 2023, I foreshadowed that I would move a motion in This Place calling on her Excellency the Governor to suspend Justice Gregory Geason consistent with the provisions of the Supreme Court (Judges’ Independence) Act 1857.
That statement followed extensive consultation with Members over the preceding week in relation to concerns about the ability for Justice Geason to be suspended from judicial office while he faces criminal proceedings.
As a result of those discussions and Member’s concerns, I agreed, in good faith, to bring that motion to the House as an alternative to introducing bespoke legislation to address the question of the suspension and/or removal of Justice Geason from office.
Over the lunch break, I have briefed the Members of This Place and recently Members of The Other Place specifically about the correspondence sent to all members from Justice Geason’s lawyer raised a constitutional challenge to the motion. I have also shared that advice with correspondence and the specific issues raised in it. and have now shared that advice with all Members of Both Houses.
I would like to thank members for engaging in consultation with my office and my Department in a co-operative and non-partisan way.
The concern that motivated the proposed legislation and the draft motion arose from Justice Geason being charged with two serious family violence related offences: one count of common assault and one count of emotional abuse and intimidation.
Again, I would like to clearly acknowledge that Justice Geason has entered pleas of not guilty to these charges and is entitled to the presumption of innocence.
As I have said previously, this situation is unprecedented in Tasmania, and presents challenges that have not previously needed to be addressed. The only reference to the suspension or removal of a judge is section 1 of the Supreme Court (Judges’ Independence) Act 1857. I am advised that the power to suspend is found in the royal prerogative.
As First Law Officer I have, at all times, approached this matter apolitically and pursuant to relevant advice. It is clearly an unusual and complex area of law.
To be clear, I sought advice from Solicitor-General on multiple drafts of the proposed legislation and on a draft motion following consultation with Members and legal stakeholders. I acted in accordance and consistent with that advice at each step.
Over the weekend, Members received further correspondence including opinion from lawyers acting for Justice Geason which raised the prospect of a constitutional challenge to any suspension put in effect by Her Excellency the Governor on the Parliament’s request. Such a legal challenge had not previously been identified by the advice that I received.
I have sought and received preliminary advice from the Solicitor-General in relation to that correspondence.
It is the position of the Government that there is a constitutionally valid power to suspend a judge of the Supreme Court. However, this matter involves complex and untested legal and constitutional issues and will take some time to work through to minimise the risk of constitutional challenge.
My concern, as Attorney-General and First Law Officer, in relation to this matter has always been to ensure that the reputation of the court and the public’s confidence in our justice system is maintained.
Justice Geason is currently on voluntary leave, and as such he retains the right to sit and exercise his powers as judge. It is my view that in circumstances where a judge is facing criminal charges but retains the right to sit as a judge and to exercise their powers, there is a significant risk to the reputation of and confidence in the Court.
On 10 December 2023 his Honour Justice Geason provided a written undertaking to members of Parliament that he will not seek or attempt to exercise the powers of a judge of the Supreme Court of Tasmania whilst the criminal and ancillary proceedings against him are pending.
While that undertaking is not legally enforceable, any breach of that undertaking could be a relevant matter for Parliament to consider in relation to Justice Geason’s conduct at a future time. It is also worth noting that as a judicial officer, Justice Geason’s undertaking is significant.
In light of the written undertaking, I am reassured that he will remain on leave while the charges are resolved. As such and coupled with the prospect of a constitutional challenge, it is my view that the reputation of the Court and confidence in the justice system will be maintained as a result of that undertaking.
In the circumstances I do not consider that it is now necessary or appropriate to move the foreshadowed motion.
We have maintained complete integrity in relation to a very difficult matter, and I hasten to add that we have been acting in good faith and in accordance with advice throughout.
I further emphasise that the very significant development being that Justice Geason signed a written undertaking in terms made public and similar to that which the Government was proposing to move has provided us with a confidence that the integrity of the justice system can be protected. I table to the undertaking so that the Parliament’s record on this issue us complete.
Once again, I thank Members for their engagement in relation to this issue.
