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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Judicial Conduct Commissioner
Bill 2015
A BILL FOR
An Act to provide for the appointment of a Judicial Conduct Commissioner to
examine complaints in relation to the conduct of judicial officers; to make
related amendments to the
Constitution
Act 1934
, the
Courts
Administration Act 1993
, the
District
Court Act 1991
, the
Equal
Opportunity Act 1984
, the
Freedom
of Information Act 1991
, the
Judges'
Pensions Act 1971
, the
Justices
of the Peace Act 2005
, the
Magistrates
Act 1983
and the
Ombudsman
Act 1972
; and for other purposes.
Contents
Part 2—Judicial Conduct
Commissioner
6Functions and powers of
Commissioner
Division 2—Preliminary examination of
complaint
13Preliminary examination
of complaints
14Referral of complaint
to OPI
15Power to take no
further action
Division 3—Action after preliminary
examination
17Referral of complaint
to relevant jurisdictional head
18Immediate report to
Parliament
19Recommendation to
appoint judicial conduct panel
Part 4—Judicial
conduct panels
20Appointment of judicial
conduct panels
21Dissolution of panel if member unable to
continue
22Functions and procedures of
panel
26Commissioner's annual report
27Attorney-General may request information about
complaints
30No obligation on persons to maintain
secrecy
31Confidentiality, disclosure of information and
publication of reports
32Publication of information and
evidence
Part 1—Amendment of Constitution
Act 1934
1Amendment of section 74—Tenure of office
of Judges
Part 2—Amendment of Courts
Administration Act 1993
Part 5A—Responsibilities of
jurisdictional head
27CResponsibilities
of jurisdictional head
Part 3—Amendment of District Court
Act 1991
4Amendment of section 15—Removal of Judges
and Masters
Part 4—Amendment of Equal
Opportunity Act 1984
5Amendment of section 87—Sexual
harassment
Part 5—Amendment of Freedom of
Information Act 1991
6Amendment of Schedule 2—Exempt
agencies
Part 6—Amendment of Judges'
Pensions Act 1971
13Pension not
payable on removal of Judge
Part 7—Amendment of Justices of the
Peace Act 2005
8Amendment of section 9—Tenure of
office
10ASuspension and
removal of special justices
10Amendment of section 11—Disciplinary
action, suspension and removal of other justices
Part 8—Amendment of Magistrates
Act 1983
12Amendment of section 9—Tenure of
office
13Amendment of section 10—Suspension from
office
14Repeal of sections 11 and 12
Part 9—Amendment of Ombudsman
Act 1972
15Amendment of section 5—Non-application
of Act
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Judicial Conduct Commissioner
Act 2015.
This Act will come into operation on a day to be fixed by
proclamation.
(1) The objects of this Act are to enhance public confidence in the
judicial system and to protect the impartiality and integrity of the judicial
system by—
(a) providing for the appointment of a Judicial Conduct Commissioner to
receive and determine complaints regarding the conduct of judicial officers;
and
(b) providing a fair process for dealing with such complaints that
recognises and protects judicial independence; and
(c) enhancing the existing mechanisms for removal of judicial officers
where they are unable or unwilling to appropriately discharge their
duties.
(2) No power or discretion vested in the Commissioner or any other person
by this Act may be exercised so as to impugn the independence of the
judiciary.
(1) In this Act, unless the contrary intention appears—
Commissioner means the Judicial Conduct Commissioner
appointed under
section 7
, or the person from time to time acting as the Judicial Conduct
Commissioner;
complainant means a person who makes a complaint under
section 12(1)
;
complaint means a complaint under
section 12
about the conduct of a judicial officer and includes a referral by the
Attorney-General under
section 12(5)
, a referral by a jurisdictional head under
section 12(6)
and a complaint initiated by the Commissioner under
section 12(7)
;
judicial conduct panel means a judicial conduct panel
appointed under
Part 4
;
judicial office means—
(a) the office of Judge of the Supreme Court;
(b) the office of Master of the Supreme Court, District Court Judge or any
other Judge;
(c) any other office involving the exercise of judicial functions that may
be occupied by a Judge or Master or by a person with other legal
qualifications;
(d) the office of Magistrate;
(e) any other office involving the exercise of judicial functions that may
be occupied by a Magistrate or by a person with other legal
qualifications;
(f) the office of special justice;
(g) any other office prescribed by the regulations,
(and the order of the above paragraphs indicates the level of seniority of
the various offices, the inclusion of reference to more than 1 office in
the same paragraph indicating the same level of seniority);
judicial officer means a person appointed to hold or act in a
judicial office;
jurisdictional head has the same meaning as in Part 5A
of the
Courts
Administration Act 1993
;
relevant jurisdictional head, in relation to a judicial
officer who is, or is to be, the subject of a complaint, means a jurisdictional
head who has power to issue requirements to that judicial officer in accordance
with Part 5A of the
Courts
Administration Act 1993
.
(2) A reference in this Act to conduct of a judicial officer
includes any act or omission of such an officer—
(a) whether occurring in the course of carrying out functions as a
judicial officer or not; and
(b) whether resulting from an illness or incapacity or not.
This Act applies in addition to (and does not derogate from) any other Act
or law relating to judicial conduct or to the removal of a judicial
officer.
Part 2—Judicial
Conduct Commissioner
6—Functions
and powers of Commissioner
(1) The functions of the Commissioner are—
(a) to receive and deal with complaints made in accordance with this Act
in relation to the conduct of judicial officers; and
(b) to perform any prescribed functions; and
(c) to perform other functions conferred on the Commissioner by this or
any other Act.
(2) The Commissioner is not subject to the direction of any person in
relation to any matter, including—
(a) the manner in which functions are carried out or powers exercised
under this or any other Act; and
(b) the priority that the Commissioner gives to a particular matter in
carrying out functions under this or any other Act.
(3) It is not a
function of the Commissioner to challenge or call into question the legality or
correctness of any instruction, direction, order, judgment, or other decision
given or made by a judicial officer in relation to any legal
proceedings.
(4) The Commissioner
has all the powers necessary for carrying out his or her functions.
(5) Without limiting
subsection (4)
, the Commissioner may, if the Commissioner thinks it is necessary for the
purposes of exercising functions and powers under
Part 3
, do any of the following:
(a) obtain any relevant court documents (including, for example, the
transcript of a hearing);
(b) require a person who may be in a position to furnish information
relevant to the complaint—
(i) to take reasonable steps to provide that information to the
Commissioner; or
(ii) to answer a question to the best of that person's knowledge,
information and belief;
(c) require a person to
produce—
(i) any books, documents or records in his or her possession or control;
or
(ii) any information stored by computer, microfilm or by any other
process,
(insofar as the books, documents, records or information may be relevant to
the complaint);
(d) examine, copy and take extracts from any books, documents, records or
information produced under
paragraph (c)
or require a person to provide a copy of any such book, document, record
or information;
(e) take possession of any books, documents, records or information
produced under
paragraph (c)
.
(1) There will be a Judicial Conduct Commissioner appointed by the
Governor for a term not exceeding 7 years and on conditions determined by
the Governor.
(2) A person appointed to be the Commissioner is, at the end of a term of
appointment, eligible for reappointment but cannot hold office for terms
(including any term as Acting Commissioner) that exceed 10 years in
total.
(3) A person is only eligible for appointment as the Commissioner if the
person—
(a) is a legal practitioner of at least 7 years standing (taking into
account, for that purpose, periods of legal practice and judicial service within
and outside the State) or a former judge of the High Court of Australia, the
Federal Court of Australia or the Supreme Court or any other court of a State or
Territory of the Commonwealth; and
(b) is not a judicial officer or member of an Australian
Parliament.
(4) A person may
only be appointed to be the Commissioner if, following referral by the
Attorney-General of the proposed appointment to the Statutory Officers Committee
established under the
Parliamentary
Committees Act 1991
—
(a) the appointment has been approved by the Committee; or
(b) the Committee has not, within 7 days of the referral, or such
longer period as is allowed by the Attorney-General, notified the
Attorney-General in writing that it does not approve the appointment.
(5) Despite the
Parliamentary
Committees Act 1991
, the Statutory Officers Committee must not report on, or publish material
in relation to, matters referred to the Committee under
subsection (4)
except to the extent allowed by the Attorney-General (but this subsection
does not derogate from section 15I(2) of the
Parliamentary
Committees Act 1991
).
(6) If a person is a judicial officer immediately before being appointed
to be the Commissioner, for the purposes of determining the person's entitlement
to recreation leave, sick leave, long service leave or any other kind of leave
under this or another Act, the appointment may, at the option of the person, be
taken to be a continuation of his or her service as a judicial
officer.
(7) The Commissioner must not, without the consent of the
Attorney-General, engage in any remunerated employment or activity apart from
official duties.
(8) The Governor
may, on the address of both Houses of Parliament, remove the Commissioner from
office.
(9) The Governor
may suspend the Commissioner from office (with, or without, pay)
for—
(a) contravention of a condition of appointment; or
(b) misconduct; or
(c) failure or incapacity to carry out official duties
satisfactorily.
(10) If the Governor suspends the Commissioner from office, a full
statement of the reason for the suspension must be laid before both Houses of
Parliament within 7 days after the suspension if Parliament is then in
session or, if not, within 7 days after the commencement of the next
session of Parliament.
(11) If, at the end of 20 sitting days after the statement is laid
before Parliament, neither House of Parliament has presented an address to the
Governor requiring the Commissioner to be restored to office, the Commissioner
is removed from office.
(12) If within 20 sitting days after the statement is laid before
Parliament either House of Parliament presents an address to the Governor
requiring the Commissioner to be restored to office, the Commissioner is
restored to office.
(13) The office of Commissioner becomes vacant if the
holder—
(a) dies; or
(b) completes a term of office and is not reappointed; or
(c) resigns by written notice to the Governor; or
(d) is appointed to judicial office; or
(e) is nominated for election as a member of an Australian Parliament;
or
(f) becomes an insolvent under administration within the meaning of the
Corporations Act 2001 of the Commonwealth; or
(g) is convicted of—
(i) an indictable offence against the law of this State; or
(ii) an offence against the law of this State that is punishable by
imprisonment for a term of at least 12 months; or
(iii) an offence against the law of another jurisdiction that, if
committed in this State, would be an offence of a kind referred to in a
preceding paragraph; or
(h) is sentenced to imprisonment for an offence (whether against a law of
this State or another jurisdiction); or
(i) is removed from office by the Governor under this section.
(14) Except as is provided by this section, the Commissioner may not be
removed or suspended from office, nor will the office of the Commissioner become
vacant.
(15) The Commissioner is a senior official for the purposes of the
Public
Sector (Honesty and Accountability) Act 1995
.
(1) The Governor may, by instrument in writing made at the time a person
is appointed to be the Commissioner, apply the
Judges'
Pensions Act 1971
to or in relation to the Commissioner as if the Commissioner were a Judge
as defined in that Act and service as the Commissioner were judicial service as
defined in that Act.
(2) The instrument may—
(a) impose conditions on the application of the
Judges'
Pensions Act 1971
(including a condition that the Act will only apply if the person is made
a Judge following his or her term of office as Commissioner); and
(b) apply the
Judges'
Pensions Act 1971
subject to any modifications specified in the instrument.
(3) Unless the Governor otherwise directs, no pension is to be payable
under the
Judges'
Pensions Act 1971
if the Commissioner vacates the office due to insolvency or conviction or
sentencing for an offence or is removed from office.
(4) If a person who is or has been the Commissioner is appointed as a
Judge as defined in the
Judges'
Pensions Act 1971
and was, immediately before being so appointed, in receipt of a pension
under that Act, that pension ceases on the appointment.
(1) The Governor may appoint a person (who must not be a Public Service
employee) to act as the Commissioner during any period for which no person is
for the time being appointed as the Commissioner or the Commissioner is absent
from, or unable to discharge, official duties.
(2) A person is only eligible for appointment to act as the Commissioner
if the person—
(a) is a legal practitioner of at least 7 years standing (taking into
account, for that purpose, periods of legal practice and judicial service within
and outside the State) or a former judge of the High Court of Australia, the
Federal Court of Australia or the Supreme Court or any other court of a State or
Territory of the Commonwealth; and
(b) is not a judicial officer or member of an Australian
Parliament.
(3) The terms and conditions of appointment are to be determined by the
Governor, except that the person may not act as the Commissioner for more than
6 months in aggregate in any period of 12 months.
(4) A person appointed to act as the Commissioner is a senior official for
the purposes of the
Public
Sector (Honesty and Accountability) Act 1995
.
(1) The
Commissioner may engage employees on terms and conditions determined by the
Commissioner.
(2) Employees engaged under
subsection (1)
are not Public Service employees but are to be taken to be public sector
employees, employed by the Commissioner, for the purposes of the
Public
Sector (Honesty and Accountability) Act 1995
and section 74 of the
Public
Sector Act 2009
.
(3) The Commissioner may, under an arrangement established by the Minister
administering an administrative unit of the Public Service, make use of the
services or staff of that administrative unit.
(1) The Commissioner may delegate to a person (including a person for the
time being performing particular duties or holding or acting in a specified
position) a function or power under this or any other Act (except a prescribed
function or power).
(2) A function or power delegated under this section may, if the
instrument of delegation so provides, be further delegated.
(3) A delegation—
(a) must be by instrument in writing; and
(b) may be absolute or conditional; and
(c) does not derogate from the power of the delegator to act in a matter;
and
(d) is revocable at will.
(1) Subject to
subsection (2)
, a person may make a complaint to the Commissioner about any conduct of a
judicial officer.
(2) A person who is
subject to an order under section 39 of the
Supreme
Court Act 1935
prohibiting him or her from instituting proceedings (or proceedings of a
particular class) may not make a complaint under this Act.
(3) The Commissioner must give notice to the relevant jurisdictional head
of a complaint under
subsection (1)
.
(4) A complaint under
subsection (1)
must—
(a) be in writing; and
(b) identify the judicial officer who is the subject of the complaint;
and
(c) identify the complainant; and
(d) set out the matters to which the complaint relates; and
(e) include any other material, and be verified in any manner, required by
the Commissioner.
(5) The
Attorney-General may, by notice in writing, refer to the Commissioner any
matters regarding the conduct of a judicial officer.
(6) A
jurisdictional head may, by notice in writing, refer to the Commissioner any
matters regarding the conduct of a judicial officer in relation to whom he or
she would be the relevant jurisdictional head (in accordance with the definition
in
section 4
).
(7) The
Commissioner may, on his or her own initiative, treat as a complaint any matters
concerning the conduct of a judicial officer.
Division 2—Preliminary
examination of complaint
13—Preliminary
examination of complaints
(1) The
Commissioner must conduct a preliminary examination of each complaint received
to determine whether—
(a) the complaint is one that should be referred to the Office for Public
Integrity in accordance with
section 14
; or
(b) there are grounds for exercising his or her power under
section 15
to take no further action in respect of the complaint; or
(c) there are
grounds for dismissing the complaint under
section 16
.
(2) The Commissioner may conduct a preliminary examination in any manner
the Commissioner thinks fit (but the Commissioner must act in accordance with
the principles of procedural fairness).
(3) In conducting a preliminary examination, the Commissioner must make
such inquiries into the complaint as he or she thinks appropriate and
may—
(a) require further information from the complainant (and may require that
such further information be verified in any manner required by the
Commissioner); and
(b) consult the relevant jurisdictional head.
(4) The Commissioner may determine to deal with a series of complaints
relating to a particular judicial officer as if they were a single complaint
(and may do so even if the Commissioner has previously dealt with any of those
complaints or is in the course of dealing with any of those
complaints).
14—Referral
of complaint to OPI
(1) If the Commissioner
is of the opinion that a complaint relates to conduct that may comprise
corruption in public administration within the meaning of the
Independent
Commissioner Against Corruption Act 2012
—
(a) the Commissioner must refer the complaint to the Office for Public
Integrity to be dealt with under that Act; and
(b) consideration of
the complaint under this Act is postponed until the Independent Commissioner
Against Corruption notifies the Commissioner that he or she considers it
appropriate that consideration of the complaint under this Act
continue.
(2) The Independent Commissioner Against Corruption must give the
Commissioner the notification referred to in
subsection (1)(b)
as soon as practicable after conducting the assessment required under
section 23 of the
Independent
Commissioner Against Corruption Act 2012
unless the matter is assessed as raising a potential issue of corruption
in public administration that could be the subject of a prosecution.
15—Power
to take no further action
(1) The
Commissioner may take no further action in respect of a complaint if satisfied
that further consideration of the complaint would, in all the circumstances, be
unjustified.
(2) Without limiting the operation of
subsection (1)
, reasons why further consideration of a complaint would, in all the
circumstances, be unjustified, may be, or include, all or any of the following
that apply to the complaint:
(a) that the complaint has been resolved to the complainant’s
satisfaction following an explanation from the judicial officer who is the
subject of the complaint;
(b) that the complaint is genuine and made in good faith, but is based on
a misunderstanding;
(c) that the Commissioner, having started the preliminary examination
required by
section 13
, has concluded that there is no reasonable prospect of there being
available to him or her information that would enable the complaint to be
substantiated;
(d) that the Commissioner has requested further information from the
complainant and the complainant has refused to provide such information or has
failed to provide such information within a reasonable time.
(3) The fact that a complaint has been resolved to the complainant’s
satisfaction because of an apology by the judicial officer who is the subject of
the complaint is not, by itself, a reason why further consideration of a
complaint would, in all the circumstances, be unjustified.
(4) If the Commissioner exercises his or her power under this section to
take no further action in respect of a complaint, he or she must give any
complainant, the judicial officer who is the subject of the complaint and the
relevant jurisdictional head written notification stating—
(a) that the Commissioner has exercised that power; and
(b) the grounds on which he or she is satisfied that further consideration
of the complaint would, in all the circumstances, be unjustified.
(1) The Commissioner must dismiss the complaint if he or she is of the
opinion that—
(a) the complaint is not within the Commissioner's jurisdiction;
or
(b) the complaint has no bearing on judicial functions or judicial duties;
or
(c) the complaint has been made for an improper purpose or is otherwise
frivolous, vexatious, or not in good faith; or
(d) the subject matter of the complaint is trivial; or
(e) the complaint is about a judicial decision, or other judicial
function, that is or was subject to a right of appeal or right to apply for
judicial review or dealing with the complaint would otherwise require the
Commissioner to exercise functions referred to in
section 6(3)
; or
(f) the person who is the subject of the complaint is no longer a judicial
officer; or
(g) the Commissioner has considered or previously considered the subject
matter of the complaint and—
(i) has exercised his or her power under
section 15
to take no further action in respect of the complaint; or
(ii) has determined that the subject matter of the complaint could not, if
substantiated, warrant the taking of any action under this Act.
(2) The Commissioner may dismiss the complaint if he or she is of the
opinion that the complaint has not been made in accordance with this
Act.
(3) If the Commissioner dismisses a complaint under this section, he or
she must give any complainant, the judicial officer who is the subject of the
complaint and the relevant jurisdictional head written notification
stating—
(a) that the complaint has been dismissed; and
(b) the grounds on which that decision was made.
Division 3—Action
after preliminary examination
17—Referral
of complaint to relevant jurisdictional head
(1) Having conducted the preliminary examination of a complaint, the
Commissioner must refer the complaint to the relevant jurisdictional head
unless—
(a) the complaint consists of a referral by the relevant jurisdictional
head under
section 12(6)
; or
(b) the Commissioner has exercised the power to take no further action in
respect of the complaint under
section 15
or has dismissed the complaint under
section 16
.
(2) The Commissioner may, on referring a complaint—
(a) recommend that the relevant jurisdictional head take specified action
in relation to the complaint so referred; or
(b) advise the relevant jurisdictional head that—
(i) in the opinion of the Commissioner, the complaint is not able to be
satisfactorily dealt with by the taking of any action by the relevant
jurisdictional head; and
(ii) the Commissioner intends to make a report on the complaint to the
Parliament in accordance with
section 18
or make a recommendation to the Attorney-General under
section 19
.
(3) The relevant
jurisdictional head must, within 28 days after referral of the complaint
(or such other period as may be agreed between the Commissioner and the relevant
jurisdictional head), give the Commissioner written notification of the action
taken by the relevant jurisdictional head in relation to the
complaint.
(4) The Commissioner may, if he or she thinks fit, make a report to the
Attorney-General in relation to any action taken under, or in connection with,
this section.
(5) The Commissioner must—
(a) give any complainant written notification of any action taken by the
Commissioner under this section or of any action of which the Commissioner has
been notified under
subsection (3)
; and
(b) give the judicial officer who is the subject of the complaint written
notification of any action taken by the Commissioner under this
section.
18—Immediate
report to Parliament
(1) The Commissioner may make a report on a complaint to the Parliament
if—
(a) the complaint—
(i) consists of a referral by the relevant jurisdictional head under
section 12(6)
; or
(ii) has been referred to the relevant jurisdictional head under
section 17
but is not, in the Commissioner's opinion, able to be satisfactorily dealt
with by the taking of any action by the relevant jurisdictional head;
and
(b) the judicial officer who is the subject of the complaint is a Judge
who is liable to be removed from office, pursuant to the
Constitution
Act 1934
or any other Act or law, on an address from both Houses of Parliament;
and
(c) the Commissioner is of the opinion that—
(i) there should be immediate consideration by the Parliament of such
removal; and
(ii) it is unlikely that an inquiry by a judicial conduct panel would
provide additional information that should be available to the Parliament in
considering such removal.
(2) A copy of the report must be delivered to the President of the
Legislative Council and the Speaker of the House of Assembly.
(3) The President of the Legislative Council and the Speaker of the House
of Assembly must, on the first sitting day after receiving a report, lay it
before their respective Houses.
(4) The Commissioner must also give a copy of the report to any
complainant, to the judicial officer who is the subject of the complaint, to the
relevant jurisdictional head and to the Attorney-General.
19—Recommendation
to appoint judicial conduct panel
(1) The Commissioner may recommend to the Attorney-General that he or she
appoint a judicial conduct panel to inquire into, and report on, any matters
concerning the conduct of a judicial officer if—
(a) the complaint—
(i) consists of a referral by the relevant jurisdictional head under
section 12(6)
; or
(ii) has been referred to the relevant jurisdictional head under
section 17
but—
(A) has not, in the Commissioner's opinion, been satisfactorily dealt with
by the relevant jurisdictional head within the period referred to in
section 17(3)
; or
(B) is not, in the Commissioner's opinion, able to be satisfactorily dealt
with by the taking of any action by the relevant jurisdictional head;
and
(b) the Commissioner is of the opinion that—
(i) an inquiry into the conduct is necessary or justified; and
(ii) if established, the conduct may warrant consideration of removal of
the judicial officer (under this or any other Act).
(2) The Commissioner must give reasons with his or her recommendation
under this section.
(3) The Commissioner must give written notification of any action taken
under this section to any complainant, to the judicial officer who is the
subject of the complaint and to the relevant jurisdictional head.
(4) If the Commissioner recommends that a judicial conduct panel be
appointed, the Commissioner must, at the request of the Attorney-General, make
any relevant files kept by the Commissioner available to the
Attorney-General.
Part 4—Judicial
conduct panels
20—Appointment
of judicial conduct panels
(1) The Attorney-General may, at any time, appoint a judicial conduct
panel to inquire into, and report on, any matters concerning the conduct of a
judicial officer that have been the subject of a recommendation by the
Commissioner under
section 19
.
(2) Before
appointing a panel, the Attorney-General must consult the Chief Justice of the
Supreme Court about the proposed membership of the Panel (or, if the matters to
be inquired into and reported on concern the conduct of the Chief Justice, the
next most senior available Judge of the Supreme Court).
(3) A judicial
conduct panel consists of the following persons appointed by the
Attorney-General:
(a) 2 members
who are eligible judicial officers, 1 of whom should be an eligible
judicial officer who is, or has been, of equal or higher seniority than the
judicial officer the subject of the complaint (if such a judicial officer is
reasonably available for appointment to the panel and would not have a conflict
of interest or otherwise be unsuitable for appointment);
(b) a lay member (not being an eligible judicial officer or a legal
practitioner).
(4) The presiding member of a judicial conduct panel will be a member
appointed under
subsection (3)(a)
designated by the Attorney-General in the instrument of appointment as the
presiding member of the panel.
(5) The appointment of a judicial officer as a member of a judicial
conduct panel does not affect his or her tenure of judicial office, rank, title,
status, precedence, salary, annual or other allowances, or other rights or
privileges as a judicial officer (including matters relating to superannuation),
and, for all purposes, service by a judicial officer as a member of a panel must
be taken to be service as a judicial officer.
(6) In this section—
eligible judicial officer means—
(a) a current or former judicial officer of this State; or
(b) a former judge of the High Court of Australia, the Federal Court of
Australia or the Supreme Court or any other court of a State or Territory of the
Commonwealth; or
(c) a current judge of the Federal Court of Australia or the Supreme Court
or any other court of a State or Territory of the Commonwealth if the
jurisdictional head of the relevant Court concurs.
21—Dissolution
of panel if member unable to continue
If a member of a judicial conduct panel is for any reason unable to
continue as a member—
(a) the presiding member must dissolve the panel and notify the
Attorney-General of the dissolution; and
(b) the Attorney-General must appoint a new panel under this
Part.
22—Functions
and procedures of panel
(1) A judicial conduct panel must inquire into, and report on, the matters
concerning the conduct of a judicial officer referred to it by the
Attorney-General on the recommendation of the Commissioner and may inquire into,
and report on, any other matters concerning the conduct of the judicial officer
that arise in the course of its dealing with the referral from the
Attorney-General.
(2) The procedure for the calling of meetings of a judicial conduct panel
and for the conduct of business at those meetings is, subject to this Act,
determined by the panel.
(3) A judicial conduct panel must, however—
(a) act in accordance with the principles of procedural fairness;
and
(b) hold all meetings of the panel in private; and
(c) call meetings and conduct business at those meetings in accordance
with any guidelines approved by the Chief Justice of the Supreme
Court.
(4) All 3 members of a judicial conduct panel must be present at a
meeting of the panel.
(5) The presiding member presides at a meeting of a judicial conduct panel
and has a deliberative vote only.
(6) A decision supported by a majority of the votes cast at a meeting of a
judicial conduct panel is the decision of the panel.
(7) A judicial conduct panel must cause full and accurate minutes to be
kept of the proceedings of each meeting of the panel.
(1) For the purposes of
an inquiry under this Part, a judicial conduct panel has the powers of a
commission as defined in the
Royal
Commissions Act 1917
and that Act applies as if—
(a) the judicial conduct panel were a commission as so defined;
and
(b) the subject matter of the inquiry was set out in a commission of
inquiry issued by the Governor under that Act.
(2) Without limiting
subsection (1)
, a judicial conduct panel may require the judicial officer to undergo
1 or more medical examinations for the purpose of assisting in determining
whether proper cause exists for removing the judicial officer from
office.
(1) A judicial conduct panel must provide a report to the Attorney-General
at the conclusion of its inquiry.
(2) The report must set out—
(a) the panel's findings of fact; and
(b) the panel's opinion as to whether removal of the judicial officer is
justified; and
(c) the reasons for the panel's conclusion.
(3) A copy of the report must be provided to any complainant, to the
judicial officer who is the subject of the report and to the relevant
jurisdictional head.
(4) The Attorney-General must cause a copy of the report to be laid before
each House of Parliament.
25—Removal
of judicial officer
(1) Subject to
subsection (2)
, if a judicial conduct panel concludes that removal of a judicial officer
is justified, the Governor may remove the judicial officer from
office.
(2) If the judicial
officer is a Judge who is liable to be removed from office, pursuant to the
Constitution
Act 1934
or any other Act or law, on an address from both Houses of Parliament,
subsection (1)
does not apply (but the Judge may be removed from office on such an
address from both Houses of Parliament under the
Constitution
Act 1934
or other Act or law).
26—Commissioner's
annual report
(1) The Commissioner must, before 30 September in each year, prepare
a report on the operation of this Act.
(2) The report must—
(a) relate to the financial year preceding the making of the report;
and
(b) describe—
(i) the number and general nature of complaints received by the
Commissioner; and
(ii) the number and general nature of any complaints dealt with under
section 15
; and
(iii) the number and general nature of any complaints dismissed under
section 16
; and
(iv) the number and general nature of any complaints referred to a
jurisdictional head under
section 17
; and
(v) the number and general nature of any complaints that resulted in a
report to Parliament under
section 18
; and
(vi) the number and general nature of any complaints that resulted in a
recommendation under
section 19
; and
(c) deal with any other matters prescribed by the regulations.
(3) A copy of the report must be delivered to the President of the
Legislative Council and the Speaker of the House of Assembly.
(4) The President of the Legislative Council and the Speaker of the House
of Assembly must, on the first sitting day after receiving a report, lay it
before their respective Houses.
27—Attorney-General
may request information about complaints
The Commissioner must, at the request of the Attorney-General, provide the
Attorney-General with specified information or information of a specified kind
about the exercise of the Commissioner's functions under this Act.
(1) Any application for judicial review of a decision under this Act must
be made to the Full Court.
(2) In this section—
Full Court has the same meaning as in the
Supreme
Court Act 1935
.
(1) No liability attaches to the Commissioner, any member of the
Commissioner's staff or the members of a judicial conduct panel for any act or
omission in good faith in the exercise or purported exercise of powers or
functions under this or any other Act.
(2) In this section—
member of the Commissioner's staff includes any person to
whom powers or functions have been delegated under
section 11
.
30—No
obligation on persons to maintain secrecy
No obligation to maintain secrecy or other restriction on the disclosure of
information applies for the purposes of a complaint under this Act, except an
obligation or restriction designed to keep the identity of a confidential source
of information relating to the enforcement or administration of the law
secret.
31—Confidentiality,
disclosure of information and publication of reports
(1) A person
engaged or formerly engaged in the administration of this Act must not disclose
information obtained in the course of the administration of this Act
except—
(a) for the purposes of the administration or enforcement of this Act;
or
(b) for the purposes of a criminal proceeding or a proceeding for the
imposition of a penalty; or
(c) as authorised or required by the Commissioner; or
(d) as otherwise authorised or required by this Act or regulations under
this Act or any other Act or law.
Maximum penalty: $10 000 or imprisonment for 2 years.
(2) The Commissioner is only to authorise or require information to be
disclosed if of the opinion that the disclosure is in the public interest (but a
person to whom an authorisation or requirement is directed need not inquire into
the basis of the authorisation or requirement).
(3) The Commissioner may, if of the opinion that it is in the public
interest to do so, cause a report on a complaint, or a statement about a
complaint, or a decision to take no further action in relation to a complaint or
to dismiss a complaint, to be published in such manner as the Commissioner
thinks fit.
(4) Information that has been disclosed under this section for a
particular purpose must not be used for any other purpose by—
(a) the person to whom the information was disclosed; or
(b) any other person who gains access to the information (whether properly
or improperly and whether directly or indirectly) as a result of that
disclosure.
Maximum penalty: $10 000 or imprisonment for 2 years.
32—Publication
of information and evidence
(1) A person must not, except as authorised by the Commissioner or a
court, publish, or cause to be published information or evidence relating to a
complaint if publication of the information or evidence is prohibited by the
Commissioner.
Maximum penalty:
(a) in the case of a body corporate—$150 000;
(b) in the case of a natural person—$30 000.
(2) In this section—
publish means publish by—
(a) newspaper, radio or television; or
(b) Internet or other electronic means of creating and sharing content
with the public or participating in social networking with the public; or
(c) any similar means of communication to the public.
(1) A person must not—
(a) prevent another person from making a complaint under this Act;
or
(b) hinder or obstruct another person in making such a
complaint.
Maximum penalty: $10 000 or imprisonment for 2 years.
(2) A person must not—
(a) hinder or obstruct the Commissioner or a judicial conduct panel in the
exercise or performance of powers or functions conferred by or under this Act;
or
(b) refuse or fail to comply with a lawful requirement of the Commissioner
or a judicial conduct panel under this Act; or
(c) make a statement that is false or misleading in a material particular
(whether by reason of the inclusion or omission of a particular) to the
Commissioner or a judicial conduct panel acting in the exercise of powers under
this Act; or
(d) make a complaint knowing that there are no grounds for the making of
the complaint.
Maximum penalty: $10 000 or imprisonment for 2 years.
Subject to the regulations, a notice, report or other document required or
authorised to be given to or served on a person under this Act
may—
(a) be given to the person personally; or
(b) be left for the person at the person's place of residence or business
with someone apparently over the age of 16 years; or
(c) be posted to the person at the person's last known place of residence
or business; or
(d) be transmitted by fax or email to a fax number or email address
provided by the person (in which case the notice or other document will be taken
to have been given or served at the time of transmission); or
(e) if the person is a company or registered body within the meaning of
the Corporations Act 2001 of the Commonwealth, be served in
accordance with that Act.
(1) The Governor may
make such regulations as are contemplated by, or necessary or expedient for the
purposes of, this Act.
(2) Without limiting the generality of
subsection (1)
, the regulations may—
(a) confer functions on the Commissioner relating to education and
training of judicial officers or other members of the legal profession;
and
(b) prescribe fees in respect of any matter under the regulations and
provide for their payment, recovery or waiver.
(3) The regulations may—
(a) be of general application or vary in their application according to
prescribed factors; and
(b) provide that a matter or thing in respect of which regulations may be
made is to be determined according to the discretion of the Attorney-General or
the Commissioner.
Part 1—Amendment of Constitution
Act 1934
1—Amendment
of section 74—Tenure of office of Judges
(1) Section 74—delete "during their good behaviour"
(2) Section 74—after "law" insert:
or their removal under section 75
After section 75 insert:
75A—Operation of Part
Nothing in this Part affects the operation of the
Judicial
Conduct Commissioner Act 2015
.
Part 2—Amendment of Courts Administration
Act 1993
After section 27 insert:
Part 5A—Responsibilities of jurisdictional
head
27A—Interpretation
In this Part—
court includes a tribunal or other body the functions of
which include the exercise of judicial powers;
judicial office means—
(a) the office of Judge of the Supreme Court;
(b) the office of Master of the Supreme Court, District Court Judge or any
other Judge;
(c) any other office involving the exercise of judicial functions that may
be occupied by a Judge or Master or by a person with other legal
qualifications;
(d) the office of Magistrate;
(e) any other office involving the exercise of judicial functions that may
be occupied by a Magistrate or by a person with other legal
qualifications;
(f) the office of special justice;
(g) any other office prescribed by the regulations;
judicial officer means a person appointed to hold or act in a
judicial office;
jurisdictional head of a court means the judicial officer who
has primary responsibility for the administration of the court.
27B—Application of Part
(1) This Part applies to a court of the State whether it is a
participating court or not.
(2) This Part applies in addition to, and without derogating from, any
other Act or law.
27C—Responsibilities of jurisdictional
head
(1) The jurisdictional
head of a court is responsible for ensuring the effective, orderly and
expeditious discharge of the business of that court.
(2) Without limiting the generality of
subsection (1)
—
(a) the functions of the jurisdictional head include—
(i) participating as a judicial officer of the court; and
(ii) managing the business of the court, including by ensuring that the
court operates efficiently and effectively and continually improves the way in
which it carries out its functions; and
(iii) providing leadership and guidance to the court and engendering
cohesiveness and collaboration amongst the judicial officers and staff of the
court; and
(iv) developing and implementing performance standards and setting
benchmarks for the court; and
(v) being responsible for promoting the training, education and
professional development of judicial officers of the court; and
(vi) overseeing the proper use of the resources of the court;
and
(vii) providing advice to the Council, the Attorney-General or other
persons (as the jurisdictional head thinks fit) about—
(A) the judicial officers of the court; and
(B) the operations and activities of the court; and
(b) the jurisdictional head may do all or any of the following:
(i) make
arrangements as to the judicial officer or judicial officers who is or are to
constitute the court in particular matters (or classes of matters) or in
particular places;
(ii) without limiting the generality of
subparagraph (i)
—assign particular cases, caseloads, classes of cases or functions to
particular judicial officers of the court;
(iii) require a judicial officer of the court to assist in the
administration of the court;
(iv) temporarily restrict a judicial officer of the court to non-sitting
duties;
(v) require a judicial officer of the court to keep particular
records;
(vi) require a judicial officer of the court to undergo a medical
examination or counselling and to provide the jurisdictional head with a report
on the examination or counselling;
(vii) counsel a judicial officer of the court in relation to any conduct
that has the potential to undermine public confidence in the court;
and
(c) the jurisdictional head must ensure that arrangements are in place to
provide judicial officers with appropriate access to (or reimbursement for the
cost of)—
(i) annual health assessments; and
(ii) short-term counselling services; and
(iii) judicial education; and
(d) the jurisdictional head may issue requirements to a judicial officer
of the court in response to a complaint referred under section 17 of the
Judicial
Conduct Commissioner Act 2015
; and
(e) the jurisdictional head may take any measures that the jurisdictional
head believes are reasonably necessary to maintain public confidence in the
court (including, but not limited to, temporarily restricting another judicial
officer to non-sitting duties).
(3) If a judicial officer refuses or fails to comply with a requirement
issued by the jurisdictional head in response to a complaint referred under
section 17 of the
Judicial
Conduct Commissioner Act 2015
, the jurisdictional head must, by notice in writing, report that refusal
or failure to the Attorney-General and to the Judicial Conduct Commissioner (and
the report to the Judicial Conduct Commissioner will be taken to be a referral
of the matter in accordance with section 12(6) of that Act).
(4) A jurisdictional head of a court must give notice to the Judicial
Conduct Commissioner of any complaint made to the jurisdictional head in
relation to the conduct of a judicial officer of the court (but the giving of
such a notice does not, of itself, constitute a referral of the matter for the
purposes of section 12(6) of the
Judicial
Conduct Commissioner Act 2015
).
Part 3—Amendment of District Court
Act 1991
4—Amendment
of section 15—Removal of Judges and Masters
Section 15(2)—delete subsection (2) and substitute:
(2) A Master—
(a) may only be suspended from office on the recommendation or with the
consent of the Chief Judge; and
(b) may only be removed from office—
(i) on the recommendation or with the consent of the Chief Judge;
or
(ii) by the Governor in accordance with the
Judicial
Conduct Commissioner Act 2015
.
Part 4—Amendment of Equal Opportunity
Act 1984
5—Amendment
of section 87—Sexual harassment
Section 87(6b)—after "judicial duties" insert:
(but conduct occurring in such circumstances may be the subject of a
complaint under the
Judicial
Conduct Commissioner Act 2015
)
Part 5—Amendment of Freedom of Information
Act 1991
6—Amendment
of Schedule 2—Exempt agencies
Schedule 2—after paragraph (k) insert:
(ka) the Judicial Conduct Commissioner;
(kb) a judicial conduct panel under the
Judicial
Conduct Commissioner Act 2015
;
Part 6—Amendment of Judges' Pensions
Act 1971
Section 13—delete the section and substitute:
13—Pension not payable on removal of
Judge
Unless the Governor otherwise directs, a pension under this Act is not
payable to, or in relation to, a Judge who has been removed from office, whether
pursuant to the
Constitution
Act 1934
or otherwise under an Act or law.
Part 7—Amendment of Justices of the Peace
Act 2005
8—Amendment
of section 9—Tenure of office
Section 9(a)(v)—after "this Act" insert:
or the
Judicial
Conduct Commissioner Act 2015
After section 10 insert:
10A—Suspension and removal of special
justices
(1) The Governor may, by notice in writing given on the advice of the
Chief Magistrate, suspend a special justice from office for a specified period
or until the fulfilment of stipulated conditions or until further
notice.
(2) A special justice
may not be suspended from office unless—
(a)
subsection (4)
applies; or
(b) action is being
taken under the
Judicial
Conduct Commissioner Act 2015
for the purpose of determining whether proper cause exists for removing
the special justice from office.
(3) A suspension under
subsection (2)(b)
may be revoked by further notice.
(4) If a special
justice is charged with an offence other than an expiable offence, the special
justice is, by force of this subsection, suspended from office as a special
justice until proceedings based on the charge have been completed.
(5) However, the Attorney-General may, on application by the special
justice, by notice in writing—
(a) cancel a suspension under
subsection (4)
if satisfied that the outstanding charge should, in the circumstances, be
disregarded; and
(b) impose such conditions specifying or limiting the official powers that
the special justice may exercise as the Attorney-General considers
appropriate.
(6) A purported exercise of power or authority by a special justice
suspended from office under this section is not rendered invalid by reason only
of the suspension.
(7) If a special
justice is found guilty or convicted by a court of an offence other than an
expiable offence, the special justice is, by force of this subsection, removed
from office as a special justice.
(8) However, the
Attorney-General may, on application by the special justice, by notice in
writing—
(a) reinstate the special justice if satisfied that the finding of guilt
or conviction should, in the circumstances, be disregarded; and
(b) impose such conditions specifying or limiting the official powers that
the special justice may exercise as the Attorney-General considers
appropriate.
(9) A person who has been removed from office as a special justice may not
apply for reappointment as a justice for a period of 5 years from the date
of removal or such longer period as may be specified by the Governor in the
notice of removal.
(10) Nothing in this section affects the operation of the
Judicial
Conduct Commissioner Act 2015
.
10—Amendment
of section 11—Disciplinary action, suspension and removal of other
justices
(1) Section 11—before subsection (1) insert:
(a1) This section applies to justices other than special
justices.
(2) Section 11(1)(a)—delete "(whether as a justice or special
justice)"
(3) Section 11(3)—delete "Subject to subsection (4a), if" and
substitute:
If
(4) Section 11(4a), (4b) and (4c)—delete subsections (4a), (4b) and
(4c)
(5) Section 11(5)—delete "Subject to subsection (5a), if" and
substitute:
If
(6) Section 11(5a) and (5b)—delete subsections (5a) and
(5b)
Part 8—Amendment of Magistrates
Act 1983
Section 8—delete the section
12—Amendment
of section 9—Tenure of office
Section 9(1)(e)—delete paragraph (e) and substitute:
(e) the person is removed from office by the Governor in accordance with
the
Judicial
Conduct Commissioner Act 2015
.
Note—
The power of removal referred to in paragraph (e) is the only
statutory power to remove a magistrate from office.
13—Amendment
of section 10—Suspension from office
(1) Section 10(3)(b)—delete paragraph (b) and substitute:
(b) action is being taken under the
Judicial
Conduct Commissioner Act 2015
for the purpose of determining whether proper cause exists for removing
the magistrate from office.
(2) Section 10—after subsection (5) insert:
(6) Except as provided in this section, a magistrate may not be suspended
from office.
14—Repeal
of sections 11 and 12
Sections 11 and 12—delete the sections
Part 9—Amendment of Ombudsman
Act 1972
15—Amendment
of section 5—Non-application of Act
Section 5—after subsection (2) insert:
(3) This Act does not apply to or in relation to—
(a) any complaint to which the
Judicial
Conduct Commissioner Act 2015
applies; or
(b) any matter to which that Act would apply if the matter were the
subject of a complaint under that Act.