Judicial Officers Act 1986 (NSW)

Judicial Officers Act 1986 No 100 An Act relating to the tenure of judicial office; to constitute a Judicial Commission of New South Wales; to confer on the Commission functions relating to sentencing consistency, judicial education and certain other matters; to provide for the examination of complaints against Judges and other judicial officers; to provide for their suspension, removal and retirement in certain circumstances; and for other purposes. Part 1 Preliminary 1 Name of Act This Act may be cited as the Judicial Officers Act 1986. 2 Commencement (1) Sections 1 and 2 shall commence on the date of assent to this Act. (2) Except as provided by subsection (1), this Act shall commence on such day as may be appointed by the Governor and notified by proclamation published in the Gazette. 3 Definitions (1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires— Chairperson means the Chairperson of the Conduct Division. Commission means the Judicial Commission of New South Wales constituted by this Act. complaint means a complaint under Part 6 about a judicial officer. Conduct Division means the Conduct Division of the Commission. judicial officer means (except in Part 7A)— (a) a Judge or associate Judge of the Supreme Court, (b) a member, including a judicial member, of the Industrial Relations Commission, (c) a Judge of the Land and Environment Court, (d) a Judge of the District Court, (e) the President of the Children's Court, (f) a Magistrate, or (g) (Repealed) (h) the President of the Civil and Administrative Tribunal. Magistrate includes a Children's Magistrate and an industrial magistrate. President means the President of the Commission. regulations means regulations under this Act. (2) In this Act— (a) a reference to a function includes a reference to a power, authority and duty, and (b) a reference to the exercise of a function includes, where the function is a duty, a reference to the performance of the duty. (3) In this Act, a reference to the Chief Justice or the holder of any other judicial office includes a reference to an Acting Chief Justice or a person duly exercising the functions of or appointed to act in that other office. (3A) This Act extends to acting appointments to a judicial office, whether made with or without a specific term. (4) (Repealed) (5) In this Act, a reference to the relevant head of jurisdiction is a reference to— (a) the Chief Justice, in relation to a Judge or associate Judge of the Supreme Court, (b) the President of the Industrial Relations Commission, in relation to a member of that Commission, (c) the Chief Judge of another court, in relation to a Judge of the other court, or (d) the Chief Magistrate, in relation to a Magistrate. (6) In this Act, all references to the Governor are references to the Governor with the advice of the Executive Council. (7) The Chairperson may be referred to as the Chairman or Chairwoman, as the case requires. (8) Notes included in this Act do not form part of this Act. Part 2 4 (Repealed) Part 3 The Judicial Commission 5 The Commission (1) There is constituted by this Act a commission to be called the "Judicial Commission of New South Wales". (1A) The Commission is, by virtue of this subsection, a corporation. (2) The Commission shall have and may exercise the functions conferred or imposed on it by or under this or any other Act. (3) The Commission shall consist of 10 members, of whom— (a) 6 are official members, and (b) 4 are appointed members, who shall be appointed by the Governor on the nomination of the Minister. (4) The official members are— (a) the Chief Justice of the Supreme Court, (b) the President of the Court of Appeal, (c) the President of the Industrial Relations Commission, (d) the Chief Judge of the Land and Environment Court, (e) the Chief Judge of the District Court, (f) the Chief Magistrate. (5) Of the appointed members— (a) one shall be an Australian legal practitioner nominated following consultation by the Minister with the President of the New South Wales Bar Association and the President of the Law Society of New South Wales, and (b) 3 are to be persons nominated following consultation by the Minister with the Chief Justice and who, in the opinion of the Minister, have high standing in the community. (6) The Chief Justice is President of the Commission. (7) Schedule 1 has effect with respect to the appointed members of the Commission. (8) Schedule 2 has effect with respect to the procedure of the Commission. 6 Staff etc of the Commission (1) The Commission may employ a Chief Executive and such other staff as may be necessary to enable the Commission to exercise its functions. (2) The Commission may, with the concurrence of the Secretary of the Premier's Department, fix the salaries, wages, allowances and conditions of employment of any such staff in so far as they are not fixed by or under another Act or law. (3) The Commission may— (a) with the approval of the Minister to whom the agency or authority concerned is responsible, and (b) on such terms and conditions as may be approved by the Secretary of the Premier's Department, arrange for the use of the services of any employees or facilities of a Public Service agency or public authority. (4) The Commission may, on such terms and conditions as may be approved by the Secretary of the Premier's Department, engage any suitably qualified person to provide the Commission with services, information or advice. (5) For the purposes of this Act, a person who is employed under subsection (1), or whose services are made use of under subsection (3), is an officer of the Commission. (6) Schedule 5 has effect with respect to the rights of certain staff of the Commission. 7 Delegation (1) The Commission may delegate to a member, officer or committee of the Commission the exercise of any of its functions. (2) This section does not authorise— (a) the delegation of any function relating to complaints, except to a committee referred to in section 12 (2), or (b) the delegation of this power of delegation. (3) A delegation— (a) shall be evidenced by an instrument signed by the President or another member authorised by the Commission for the purpose, (b) may be general or limited, and (c) may be revoked, wholly or partly, by the Commission. (4) A delegate is, in the exercise of a delegated function, subject to such conditions as are specified in the instrument of delegation. (5) A delegated function, when exercised by the delegate, shall be deemed to have been exercised by the Commission. (6) A delegation does not prevent the exercise of a function by the Commission. (7) A function purporting to have been exercised by a delegate shall, until the contrary is proved, be deemed to have been duly exercised by a delegate under this section. Part 4 Functions of the Commission 8 Sentencing (1) The Commission may, for the purpose of assisting courts to achieve consistency in imposing sentences— (a) monitor or assist in monitoring sentences imposed by courts, and (b) disseminate information and reports on sentences imposed by courts. (2) Nothing in this section limits any discretion that a court has in determining a sentence. (3) In this section, sentence includes any order or decision of a court consequent on a conviction for an offence or a finding of guilt in respect of an offence. 9 Judicial education (1) The Commission may organise and supervise an appropriate scheme for the continuing education and training of judicial officers. (2) In organising such a scheme, the Commission shall— (a) endeavour to ensure that the scheme is appropriate for the judicial system of the State, having regard to the status and experience of judicial officers, (b) invite suggestions from and consult with judicial officers as to the nature and extent of an appropriate scheme, (c) have regard to the differing needs of different classes of judicial officers and give particular attention to the training of newly appointed judicial officers, and (d) have regard to such other matters as appear to the Commission to be relevant. 10 Guidelines (1) In addition to its functions under Part 6 in relation to complaints— (a) the Commission may formulate guidelines to assist both it and the Conduct Division in the exercise of their functions, and (b) the Commission shall monitor in a general way the activities of the Conduct Division. (2) The guidelines for the Conduct Division may include provisions with respect to any one or more of the following matters— (a) the manner in which the Conduct Division should conduct its examination of complaints generally, (b) the manner in which the Conduct Division should conduct its hearings in connection with complaints, (c) the criteria that the Conduct Division should consider when determining whether a hearing should be held in public or in private, (d) the criteria that the Conduct Division should consider when exercising its power to consent to legal representation for persons appearing at its hearings. (3) (Repealed) 11 Other functions of the Commission (1) Other functions of the Commission are— (a) to give advice to the Minister on such matters as the Commission thinks appropriate, and (b) to liaise with persons or organisations in connection with any of its functions, and (c) to enter into and carry out contractual arrangements (including commercial arrangements) for the supply by the Commission to others of property or services that comprise or make use of information technology, expertise or other things developed by the Commission in the exercise of its functions. (2) The Commission's functions under subsection (1) may be exercised both within New South Wales and elsewhere. 12 Committees (1) The Commission may establish committees to assist it in connection with the exercise of any of its functions. (2) A committee dealing with any aspect of complaints must consist entirely of members of the Commission, at least one of whom must be an appointed member. (3) It does not matter that any or all of the members of any other committee are not members of the Commission. (4) The procedure for the calling of meetings of a committee and for the conduct of business at those meetings shall be as determined by the Commission or (subject to any determination of the Commission) by the committee. Part 5 The Conduct Division 13 The Conduct Division (1) There shall be a Conduct Division of the Commission. (2) The Conduct Division shall have and may exercise the functions conferred or imposed on it by or under this or any other Act. (3) Subject to subsection (3A), the functions of the Conduct Division may be exercised by 3 persons in accordance with Part 6, and not otherwise. (3A) The following functions of the Conduct Division under Part 6 may be exercised by the Chairperson alone— (a) giving directions, (b) making determinations as to procedural matters. (4) Schedule 3 has effect with respect to the procedure of the Conduct Division. 14 Functions of the Conduct Division The functions of the Conduct Division are to examine and deal with complaints referred to it under Part 6 and formal requests referred to it under Part 6A. Part 6 Complaints against judicial officers Division 1 Making of complaints 15 Complaints (1) Any person may complain to the Commission about a matter that concerns or may concern the ability or behaviour of a judicial officer. (2) The Commission shall not deal with a complaint (otherwise than to summarily dismiss it under section 20) unless it appears to the Commission that— (a) the matter, if substantiated, could justify parliamentary consideration of the removal of the judicial officer from office, or (b) although the matter, if substantiated, might not justify parliamentary consideration of the removal of the judicial officer from office, the matter warrants further examination on the ground that the matter may affect or may have affected the performance of judicial or official duties by the officer. (3) The Commission shall not deal with a complaint (otherwise than to summarily dismiss it under section 20) about— (a) a matter arising before the appointment of the judicial officer to the judicial office then held, or (b) a matter arising before the commencement of this Act, unless it appears to the Commission that the matter, if substantiated, could justify parliamentary consideration of the removal of the officer from office. (4) A complaint may be made in relation to a judicial officer's competence in performing judicial or official duties, so long as the Commission is satisfied as to the matters mentioned in subsection (2) (a) or (b). (5) A complaint may be made in relation to a matter, and be dealt with, even though the matter is already or has been the subject of investigation or other action by the Commission or Conduct Division or by any other body or person. (6) Without limiting the foregoing, a complaint may be made in relation to a matter, and be dealt with, even though the matter constitutes or may constitute a criminal offence (whether or not dealt with, or being dealt with, by a court). (7) The Commission or Conduct Division may adjourn consideration of any matter if it is being dealt with by a court or for any other appropriate reason. 16 References by Minister (1) The Minister may refer any matter relating to a judicial officer to the Commission. (2) A reference under this section shall be treated as a complaint under this Act. 17 Manner of making complaints (1) A complaint shall be made in accordance with the regulations. (2) A complaint must be in writing and must identify the complainant and the judicial officer concerned. Division 2 Preliminary examination of complaints 18 Preliminary examination (1) The Commission shall conduct a preliminary examination of a complaint. (2) In conducting the preliminary examination, the Commission may initiate such inquiries into the subject-matter of the complaint as it thinks appropriate. (3) The examination or inquiries shall, as far as practicable, take place in private. 19 (Repealed) 20 Summary dismissal of complaints (1) The Commission shall summarily dismiss the complaint if it is of the opinion that, whether or not it appears to be substantiated— (a) the complaint is one that it is required not to deal with, (b) the complaint is frivolous, vexatious or not in good faith, (c) the subject-matter of the complaint is trivial, (d) the matter complained about occurred at too remote a time to justify further consideration, (e) in relation to the matter complained about, there is or was available a satisfactory means of redress or of dealing with the complaint or the subject-matter of the complaint, (f) without limiting paragraph (e), the complaint relates to the exercise of a judicial or other function that is or was subject to adequate appeal or review rights, (g) the person complained about is no longer a judicial officer, or (h) having regard to all the circumstances of the case, further consideration of the complaint would be or is unnecessary or unjustifiable. (2) In deciding whether or not to summarily dismiss a complaint, the Commission may have regard to such matters as it thinks fit. 21 Reference of complaint to Conduct Division or head of jurisdiction (1) A complaint made to the Commission in accordance with this Act shall, if it is not summarily dismissed, be referred to the Conduct Division. (2) The Commission may however refer a complaint to the relevant head of jurisdiction if the Commission thinks that, although the complaint appears to be wholly or partly substantiated, it does not justify the attention of the Conduct Division. (3) A reference under subsection (2) may include recommendations as to what steps might be taken to deal with the complaint. 21A Reports to Minister After dealing with a matter referred to it under section 16, the Commission must notify the Minister as to whether the matter has been summarily dismissed under section 20 (1), referred to the Conduct Division under section 21 (1) or referred to the relevant head of jurisdiction under section 21 (2). Division 3 The Conduct Division 22 Constitution of Conduct Division (1) The Commission shall appoint a panel of 3 persons to be members of the Conduct Division for the purpose of exercising the functions of the Division in relation to a complaint referred to the Division. (2) Of the panel of 3 persons so appointed— (a) 2 are to be judicial officers (but one may be a retired judicial officer), and (b) one is to be a community representative, being a person of high standing in the community nominated by Parliament in accordance with Schedule 2A. (3) One of the judicial officers shall be appointed by the Commission as Chairperson of the Conduct Division. (4) It does not matter that any or all of the members of the Conduct Division are not members of the Commission. (5) More than one panel may be constituted, and sit, at any time to deal with different complaints. (6) One panel may deal with 2 or more complaints, if the Commission considers it appropriate in the circumstances. 23 Examination of complaint by Conduct Division (1) The Conduct Division shall conduct an examination of a complaint referred to it. (2) In conducting the examination, the Conduct Division may initiate such investigations into the subject-matter of the complaint as it thinks appropriate. (3) The examination or investigations shall, as far as practicable, take place in private. 24 Hearings by Conduct Division (1) The Conduct Division may hold hearings in connection with the complaint. (2) A hearing may be held in public or in private, as the Conduct Division may determine. (3), (4) (Repealed) (5) If a hearing or part of a hearing is to take place in private, the Conduct Division may give directions as to the persons who may be present. (6) At a hearing— (a) the judicial officer complained about may be represented by an Australian legal practitioner, and (b) if, by reason of the existence of special circumstances, the Conduct Division consents to any other person being represented by an Australian legal practitioner—the person may be so represented. (7) At a hearing— (a) counsel assisting the Conduct Division, (b) any person authorised by the Division to appear before it at the hearing, or (c) any Australian legal practitioner representing a person at the hearing pursuant to subsection (6), may, so far as the Division thinks appropriate, examine or cross-examine any witness on any matter that the Division considers relevant. 25 Powers of Conduct Division concerning evidence (1) For the purposes of a hearing in connection with a complaint— (a) the Conduct Division and the Chairperson have the functions, protections and immunities conferred by the Royal Commissions Act 1923 on commissioners and the chairman of a commission appointed under that Act, and (b) that Act, with any necessary adaptations, applies to any witness summoned by or appearing before the Division in the same way as it applies to a witness summoned by or appearing before a commissioner under that Act. (2) Subsection (1) applies to and in respect of the Conduct Division and the Chairperson whether or not the Chairperson is a Judge of the Supreme Court. (3) For the purposes of subsection (1), a reference in that subsection to the Royal Commissions Act 1923 does not include a reference to section 13, 15 (1) or 17 (4) of that Act. (4) (Repealed) 26 Dismissal of complaint by Conduct Division (1) The Conduct Division shall dismiss a complaint to the extent that the Division is of the opinion that— (a) the complaint should be dismissed on any of the grounds on which the Commission may summarily dismiss complaints, or (b) the complaint has not been substantiated. (2) If the Conduct Division dismisses a complaint it must give a report to the Commission setting out the Division's conclusions. (3) The Commission must give a copy of the report to the judicial officer concerned. (4) The Commission may give a copy of the report (or a summary of the report) to the complainant unless the Conduct Division has notified the Commission in writing that this should not occur. 27 (Repealed) 28 Substantiation of complaint (1) If the Conduct Division decides that a complaint is wholly or partly substantiated— (a) it may form an opinion that the matter could justify parliamentary consideration of the removal of the judicial officer complained about from office, or (b) it may form an opinion that the matter does not justify such consideration and should therefore be referred back to the relevant head of jurisdiction. (2) If it forms an opinion referred to in subsection (1) (b), the Conduct Division must send a report to the relevant head of jurisdiction setting out the Division's conclusions. (3) A report under subsection (2) may include recommendations as to what steps might be taken to deal with the complaint. (4) A copy of a report under subsection (2) must also be given to the Commission. (5) The Commission must give a copy of the report to the judicial officer concerned. (6) The Commission may give a copy of the report (or a summary of the report) to the complainant unless the Conduct Division has notified the Commission in writing that this should not occur. 29 Reports to Governor (1) If the Conduct Division decides that a complaint is wholly or partly substantiated and forms an opinion that the matter could justify parliamentary consideration of the removal of the judicial officer from office, it must present to the Governor a report setting out the Division's findings of fact and that opinion. (2) (Repealed) (2A) A copy of the report must be furnished forthwith to the Minister. (3) The Minister shall lay the report or cause it to be laid before both Houses of Parliament as soon as practicable after the report is presented to the Governor. (4) The Minister may present the report to the Clerks of both Houses of Parliament when Parliament is not sitting, and thereupon the report shall for all purposes be deemed to have been laid before both Houses of Parliament, but the Minister shall nevertheless lay the report or cause it to be laid before both Houses of Parliament as soon as practicable after Parliament resumes. (5) A report presented to the Clerk of a House of Parliament may be printed by authority of the Clerk of the House and shall for all purposes be deemed to be a document published by order or under the authority of the House. (6) A copy of any report presented to the Governor shall also be furnished forthwith to the Commission and, after it has been laid before each House of Parliament, to the complainant. (7) (Repealed) (8) A copy of any report referred to in this section shall also be furnished to the judicial officer concerned. Division 4 Miscellaneous 30 (Repealed) 31 Extension or partial dismissal of complaint (1) In dealing with a complaint about a judicial officer, the Commission or Conduct Division is not limited to the matters raised initially in the complaint, and the Commission or Division may treat the original complaint as extending to other matters arising in the course of its being dealt with. (2) If, in dealing with a complaint about a judicial officer, matters which might constitute grounds for a complaint about another judicial officer come to the attention of the Commission or Conduct Division, it may treat the original complaint as extending to the new matters. (3) A power to dismiss a complaint (whether summarily or not) includes a power to dismiss a part of a complaint. 32 Non-finalisation of certain matters (1) The Conduct Division shall cease dealing with a complaint about a judicial officer if the officer ceases to hold office for any reason. (2) If the Conduct Division is dealing with more than one matter concerning a judicial officer, it need not deal with all of the matters if it is satisfied that it has dealt with one or more of the matters in a way that makes it unnecessary to finish dealing with all of them. (3) Nothing in this section prevents the referral of, or the making of a report about, a complaint. 33 Cases where non-judicial officers involved If a complaint about a judicial officer involves, or after examination is found to involve, a person who has never been or who has ceased to be a judicial officer, the Conduct Division may exercise its functions in relation to the person to the extent necessary to deal with and finalise its deliberations about the judicial officer. 34 Medical or psychological examination (1) If the Conduct Division is of the opinion that a judicial officer about whom a complaint has been made may be physically or mentally unfit to exercise efficiently the functions of a judicial office, the Division may request the officer to undergo such a medical or psychological examination as the Division specifies. (2) If the judicial officer refuses or fails to undergo the medical or psychological examination, the Conduct Division may, having regard to that refusal or failure and to any other relevant factors, and if it considers the matter to be sufficiently serious, form an opinion that the matter could justify parliamentary consideration of the removal of the officer from office. 35 Referral of complaint (1) If the Conduct Division decides, after examination of a complaint, that action under this section is warranted, the Division may refer the complaint or a matter arising under the complaint to any person or body considered by the Division to be appropriate in the circumstances. (2) In referring a complaint or matter, the Conduct Division may communicate to the person or body any information that the Division has obtained during the course of examining the complaint. (3) The Conduct Division may refer a complaint or matter to a person or body even though a similar complaint or matter has already been referred. (4) If the Conduct Division refers a complaint or matter, the Division does not thereby become a complainant for the purposes of any other Act. (5) This section authorises the referral of a complaint or matter even though it involves a person who has never been or has ceased to be a judicial officer. (6) Referral of a complaint or matter does not remove any obligation that the Conduct Division has under this Act in relation to the complaint. 36 Release of information (1) The Conduct Division may give directions preventing or restricting the publication of evidence given before the Division or of matters contained in documents lodged with the Division. (2) A person who makes a publication in contravention of a direction under this section is guilty of an offence punishable, upon conviction, by a fine not exceeding 100 penalty units or imprisonment for a period not exceeding one year, or both. 37 Disclosure of information by members or officers of Commission (1) A member or officer of the Commission or Conduct Division, or a member of a committee of the Commission, shall not disclose any information obtained by the member or officer in the course of his or her office in relation to a complaint, unless the disclosure is made— (a) with the consent of the person from whom the information was obtained, (b) in connection with the administration or execution of this Act (except sections 8 and 9), (c) for the purposes of any legal proceedings arising out of this Act or of any report of any such proceedings, or (d) with other lawful excuse. (2) This section does not operate to render admissible in any proceedings any evidence that would not have been so admissible if this section had not been enacted. (3) A person who contravenes this section is guilty of an offence punishable, upon conviction, by a fine not exceeding 100 penalty units or imprisonment for a period not exceeding one year, or both. 37A Information about complaints to be provided to Minister (1) The Commission must, at the request of the Minister, provide the Minister with information that discloses the following in relation to a particular judicial officer— (a) whether a complaint has been made, when a complaint was made and when the matter about which a complaint was made is alleged to have occurred, (b) the subject-matter of the complaint, (c) the stage of the procedure for dealing with a complaint that the complaint has reached, (d) for a complaint that has been disposed of, the manner in which the complaint was disposed of. (2) However, the Commission is not required to provide information about a complaint against a particular judicial officer if the Commission considers it is not in the public interest to provide the information, unless the complaint has been referred to the Conduct Division. (3) The Commission must notify the Minister when a complaint about a judicial officer is referred to the Conduct Division and when and the manner in which such a complaint is disposed of (whether or not the Minister has requested information about the complaint). (4) The Commission may, when providing the Minister with information about a complaint against a judicial officer under this section, also provide other information that the Commission considers relevant. 38 Vexatious complainants (1) If any person habitually and persistently, and mischievously or without any reasonable grounds, makes complaints, whether about the same or different judicial officers, the Commission may declare the person to be a vexatious complainant. (2) The Commission may disregard any complaint made by the person while the declaration is in force. (3) The Commission may revoke the declaration, but is not obliged to have regard to any such complaint made while the declaration was in force. 39 Allowances to witnesses (1) The regulations may prescribe a scale of allowances payable to a witness summoned to appear before the Conduct Division for travelling expenses and maintenance while absent from the witness's usual place of residence. (2) If the regulations do not prescribe such a scale of allowances, allowances shall be payable as if the witness were a witness in proceedings in the Supreme Court. (3) The claim to allowance of any witness referred to in this section shall be paid by the Treasurer out of money provided by Parliament. Part 6A Suspected impairment of judicial officers 39A Definitions In this Part— formal request means a request about a judicial officer that has been made by the relevant head of jurisdiction under section 39B. impairment includes any physical or mental impairment. 39B References by