Page 4151 - Week 13 - Thursday, 27 November 2014
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but only if the Attorney-General believes that the complaint could, if substantiated, warrant the removal of a judicial officer from office.
There is no formal mechanism for dealing with a complaint that, while requiring attention, does not warrant removal of the judicial officer from office. Informally, complaints are usually referred to the head of the relevant court. This means there is no formal, supported way to consider and address complaints where the issues in question are not of a kind to potentially warrant removal from office.
In contrast, New South Wales currently operate a standing judicial commission under their Judicial Officers Act 1986 which, among many other functions, independently receives, investigates and makes recommendations about complaints against judicial officers. The New South Wales commission’s powers are broad enough to refer serious complaints to the Attorney-General to begin removal proceedings or to recommend less serious administrative steps be taken by the relevant court.
The bill before members this morning establishes the council and requires that it be constituted by the Chief Justice, the Chief Magistrate and two members to be appointed by the executive, with the Chief Justice being the head of the council. One of the members appointed by the executive will be a legal practitioner jointly nominated by the council of the Law Society and the council of the Bar Association, and one will be a person whom the executive is satisfied as to qualifications and experience to assist the council in the exercise of its functions. The council will be supported in the exercise of its public functions by a principal officer and other staff that it considers suitable.
The bill ensures that if a member of the council is a complainant or the subject of a complaint, the member may not exercise their council functions in relation to that complaint. The bill also allows the Chief Justice and the Chief Magistrate to delegate their council functions if they are unable to exercise them for any reason, such as a conflict of interest or a perceived conflict of interest.
The amendments list the functions of the council as receiving complaints, examining complaints, referring certain complaints to the executive or a head of jurisdiction and giving information about the provision of complaints. The council is able to delegate administrative functions to its support staff.
The council will receive all complaints against judicial officers but not ACAT members and will be able to dismiss the complaint if it is inappropriate, frivolous, vexatious, trivial, too remote, able to be addressed by other satisfactory means, already subject to appeal or review or about a person who is no longer a judicial officer; refer the complaint to the relevant head of jurisdiction; hold a hearing into the complaint in accordance with the bill; or recommend to the executive that a judicial commission be appointed.
While the council will not deal with complaints against ACAT presidential members, the bill provides for the Attorney-General to approve a separate protocol for dealing with complaints against them. This protocol will be a notifiable instrument.
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