Victorian Bills Explanatory Memoranda

[Index] [Search] [Download] [Bill] [Help]


COURTS LEGISLATION (JUDICIAL CONDUCT) BILL 2005

     Courts Legislation (Judicial Conduct) Bill

                             As Sent Print

               EXPLANATORY MEMORANDUM


                                   General
The Bill amends the current legislation for dealing with serious complaints
against judicial officers by making fresh provision for the removal of judicial
officers from office. The Bill also gives an entitlement to re-appointment to
judicial office to holders of an abolished judicial office.

                                Clause Notes

                       PART 1--PRELIMINARY
Clause 1    sets out the purpose of the Bill, which is to amend the
            Constitution Act 1975 to make fresh provision for the removal
            of judicial officers from office consistent with the Australian
            Constitution, to establish a panel and an investigating committee
            structure to investigate serious complaints against judicial
            officers, and to give an entitlement to re-appointment to judicial
            office to holders of an abolished judicial office.

Clause 2    states that Part 1 of the Bill will come into operation on the day
            after the day on which it receives Royal Assent with the
            remaining provisions to commence on a day to be proclaimed or
            1 June 2006, whichever is the earlier.

   PART 2--AMENDMENT OF CONSTITUTION ACT 1975
Clause 3    entrenches a new Part IIIAA into the Constitution Act 1975.
            Part IIIA makes fresh provision for the removal of judicial
            officers from office consistent with the Australian Constitution,
            establishes a panel and an investigating committee structure to
            investigate serious complaints against judicial officers, and gives
            an entitlement to re-appointment to judicial office to holders of
            an abolished judicial office.




                                       1
551261                                                BILL LA AS SENT 4/5/2005

 


 

Clause 4 inserts a new Part IIIAA into the Constitution Act 1975. Part IIIAA consists of ten new sections (sections 87AAA-87AAJ inclusive). New section 87AAA contains definitions of "investigating committee", "judicial office", "panel", "qualifying office" and "special majority". New section 87AAB provides that the holder of judicial office may only be removed from office by the Governor in Council on an address from a special majority of both Houses of Parliament. Parliament may not present such an address unless an investigating committee established under section 87AAD has first concluded that the judicial officer's behaviour could amount to proved misbehaviour or incapacity. New section 87AAC establishes a panel of seven persons appointed by the Attorney-General. Only a former Federal Court or Family Court judge or a former judge of an interstate or Territory Supreme Court is eligible to be a member of the panel. New sections 87AAD and 87AAE provide that the Attorney- General may appoint an investigating committee of three members of the panel established by section 87AAC to investigate whether a judicial officer's behaviour could amount to proved misbehaviour or incapacity. The powers of an investigating committee established under section 87AAD are set out in new section 87AAF, and include the power to summon witnesses and examine witnesses on oath. New section 87AAG provides that an investigating committee may allow legal representation, but is not bound by the rules of evidence. New section 87AAH requires an investigating committee to report its findings to the Attorney-General, and to state whether or not facts exist which could amount to proved misbehaviour or incapacity. If appropriate, the Attorney-General may table a copy of the committee's report in Parliament. New section 87AAI provides that, despite Part IIIAA, Parliament may still fix retirement ages for judicial officers. New section 87AAJ creates an entitlement to re-appointment to judicial office to the holder of an abolished judicial office. The new section provides that where a judicial office is abolished, the holder of that office must be given the opportunity to be re-appointed to another judicial office in the same court or in a court of equivalent or higher status. 2

 


 

Clause 5 makes consequential amendments to sections 77(1) and 77(4) of the Constitution Act 1975. These sub-sections provided that Supreme Court judges held office during their good behaviour and could only be removed on an address of both Houses of Parliament. These provisions have been superseded by Part IIIAA. PART 3--AMENDMENTS OF OTHER ACTS CONSEQUENTIAL ON NEW PART IIIAA OF CONSTITUTION ACT 1975 Clause 6 amends section 104(3A) of the Supreme Court Act 1986 to make the removal provisions for Supreme Court masters consistent with new Part IIIAA of the Constitution Act 1975. Clause 7 repeals section 9 and amends sections 14(1) and 17A(2) of the County Court Act 1958 to make the removal provisions for County Court judges and masters consistent with new Part IIIAA of the Constitution Act 1975. Clause 8 repeals section 11 and amends sections 9(10) and 12 of the Magistrates' Court Act 1989 to make the removal provisions for magistrates consistent with new Part IIIAA of the Constitution Act 1975. PART 4--AMENDMENT OF VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL ACT 1998 Clause 9 substitutes a new section 23(5) into the Victorian Civil and Administrative Tribunal Act 1998. The new sub-section provides that the grounds for removing members of VCAT from office are the same as for judges, masters and magistrates, namely, proved misbehaviour or incapacity. 3

 


 

 


[Index] [Search] [Download] [Bill] [Help]