Tasmania's government is seeking advice after claims its parliamentary move to suspend a Supreme Court judge accused of assault and emotional abuse is unconstitutional.
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Justice Gregory Geason has pleaded not guilty to both charges and is expected to next appear in Hobart Magistrates Court in early February.
Geason, who was granted bail at his first court appearance on December 1, has been on leave since early November.
The state government last week announced parliament would be recalled on Tuesday to debate a motion calling on the governor to suspend Geason.
Geason's lawyer Fabiano Cangelosi wrote to the Speaker of the lower house and president of the upper house at the weekend saying the suspension move is not constitutional.
Experienced lawyers Greg Barns SC and Grant Donaldson SC provided an attached letter of legal opinion.
The pair argue the relevant law, the Supreme Court (Judges' Independence) Act 1857, does not expressly empower the Tasmanian parliament to suspend or remove a justice of the Supreme Court.
"The act merely provides that any purported suspension or removal is unlawful unless preceded by an address of both houses of parliament," they said.
A state government spokeswoman said parliament would sit as planned on Tuesday.
"The government is seeking advice on a constitutional matter relating to its planned motion ahead of returning to parliament," the spokeswoman said.
Labor opposition MP Dean Winter did not confirm whether the party would support the motion.
He said the situation was a "complete mess" and the party was seeking its own legal advice.
Mr Winter noted Geason was innocent until proven guilty but people facing such allegations would usually be stood down from their workplace.
Mr Cangelosi said the legislative course proposed for suspending Geason was "constitutionally invalid to the extent that it purports to authorise suspension".
"It follows that any address to the governor of Tasmania relying upon that provision is similarly invalid, and should not be pursued," Mr Cangelosi said.
Mr Cangelosi flagged legal action should parliamentarians pass the motion.
Justice Geason has provided a signed undertaking to MPs he will not sit in any matters or exercise his powers as a Supreme Court judge until the criminal matter is finalised.
It is alleged Geason emotionally abused or intimidated a person between April and November and tracked them using technology.
He has been accused of assaulting the person on October 31 by grabbing their arms, squeezing, shaking them and striking them with his hand.
Geason is accused of coercing his alleged victim into establishing a shared phone account to gain access to their electronic records.
Geason interrogated the person about their whereabouts, subjected them to verbal abuse and exhibited "jealousy, rage, anger and aggression", it is alleged.
Tasmanian Attorney-General Guy Barnett last week scrapped plans to set up an inquiry into Geason's fitness to serve as a judge, instead saying the suspension motion would be moved.
Mr Barnett said it was appropriate Geason be suspended in light of the serious charges against him.
Australian Associated Press
