These guidelines are issued pursuant to section 10(1) of the Judicial Officers Act 1986 (the Act)by the Judicial Commission (the Commission) to assist a Conduct Division in the exercise of its function in the examination of complaints against judicial officers.The detailed provisions of the Commission’s complaint functions are found in Part 6 of the Act. These guidelines have been made available to members of the public to assist with the understanding of how the Commission will deal with a complaint.
The Conduct Division is not a standing body but is appointed by the Commission when a particular complaint or reference under Part 6A of the Act is referred to it for examination.
The relevant provisions of the legislation relating to the Conduct Division are contained in Part 6, Division 3 and Part 6A of the Act. These provisions include:
(a) the constitution of a Conduct Division
(b) the examination of complaints
(c) hearings conducted by the Conduct Division
(d) powers of the Conduct Division, and
(e) the preparation of reports.
2. Referral of complaints to the Conduct Division
2.1 Following the preliminary examination of a complaint by the Commission, if the complaint is not summarily dismissed under one or more of the grounds under section 20(1) of the Act, the Commission must either refer the complaint to the relevant head of jurisdiction (section 21(2)) or refer the matter to a Conduct Division.
2.2 The function of a Conduct Division is to examine and investigate a particular complaint that has been referred to it by the Commission.
2.3 A Conduct Division is constituted by a panel of two judicial officers (one of whom may be a retired judicial officer) and one of the two community representatives nominated by Parliament. The membership of the Conduct Division will be determined by the Commission. The Commission will also appoint one member of the Conduct Division as Chairperson.
2.4 A formal instrument of delegation appointing a Conduct Division (including the Chairperson) will be executed by the members of the Commission.
2.5 Where a complaint is referred to a Conduct Division, the Commission will, as soon as practicable after that decision is made, advise the complainant and the judicial officer of the action taken. The Commission will also advise the Attorney General of its decision and, in each case, request the appointment of a legal practitioner or practitioners to assist the Conduct Division as counsel.
3. Referrals under Part 6A — Suspected impairment of judicial officers
The Conduct Division has the same functions in relation to the examination of a matter referred to it under Part 6A of the Act as the Commission has in relation to the examination of a complaint (section 39F(2)).
4. Examination of complaint by the Conduct Division
4.1 The Conduct Division must conduct an examination of the complaint referred to it (section 23 of the Act).
4.2 In conducting the initial examination or investigation of a complaint referred to it by the Commission the legislation requires, that as far as practicable, this will take place in private (section 23(3) of the Act).
4.3 Meetings of the Conduct Division
The initial examination of a complaint will involve the members of the Conduct Division and may include counsel assisting in its meetings. As part of this initial process, a venue and timetable for the investigation will be determined.
The legislation requires that the Conduct Division will keep full and accurate minutes of the proceedings of each meeting of the Conduct Division (Schedule 3, clause 5 of Act).
4.5 Preliminary matters
Preliminary matters necessary prior to the commencement of a hearing, including:
- interviewing the complainant and other potential witnesses
- taking statements
- gathering documents and other material, and
- preparing a brief of evidence,
will be undertaken by counsel assisting the Conduct Division. This will be under the direction of the Conduct Division.
4.6 Medical or psychological examination
Where 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 officer, it may request the officer to undergo a medical or psychological examination (section 34 of the Act).
5. Hearings by the Conduct Division
The legislation provides that the Conduct Division may hold hearings in relation to a complaint and that a hearing may be held in public or in private, as the Conduct Division may determine (section 24(2) of the Act).
5.1 Public or private hearings
If the Conduct Division decides to conduct hearings into a complaint, it has to consider whether the hearings should be held in public or private or both.
In exercising its discretion in relation to hearings and as to whether hearings should be held in public or in private or partly in public and partly in private, the Conduct Division will consider the following factors:
(a) is it in the public interest to hold the hearing or part of the hearing in public or in private?
(b) does the type of allegation under consideration (eg ability, behaviour, delay, impairment) require confidential treatment?
(c) is it desirable, because of the confidential nature of any evidence or matter, to hold a hearing or part of a hearing in private?
(d) is there a need to protect a person who provides information to the Conduct Division as part of its investigation?
(e) would public confidence in the authority of the judiciary be undermined by a public or private hearing?
(f) is it necessary to close a hearing to protect the reputation of a judicial officer from untested or unverified evidence?
(g) external factors such as any public health orders or related guidance
5.2 Persons who may be present at private hearings
If a hearing or part of a hearing is to take place in private, the Conduct Division may determine the persons who may be present. As a general guide these may include:
(a) the judicial officer complained about
(b) the legal representatives of the judicial officer
(c) counsel assisting the Conduct Division
(d) Commission staff members and/or support staff assisting the Conduct Division
(e) any person referred to in section 24(6)(b) of the Act and their legal representatives, and
(f) witnesses including expert witnesses.
5.3 Release of information
The Conduct Division has power to give directions preventing the public disclosure of evidence given at its hearings (section 36(1) of the Act).
5.4 Royal Commissions Act 1923
The function of the Conduct Division is to inquire further into the complaint about the judicial officer. In doing so, the Conduct Division has the functions, protections and immunities conferred by the Royal Commissions Act 1923 on commissioners appointed under that Act. The Royal Commissions Act applies to any witness summoned by or appearing before the Conduct Division.
5.5 Record of proceedings
A transcript of proceedings should be made and kept whenever the Conduct Division meets as a body to receive evidence, hear testimony, or hear the arguments of counsel regarding matters before it.
6. Legal representation before the Conduct Division
6.1 The Attorney General will appoint a legal practitioner or practitioners to assist the Conduct Division and to present the case against the judicial officer. This assistance is provided by senior and junior counsel and a solicitor (usually the Crown Solicitor).
6.2 The judicial officer who is the subject of the complaint will, in most instances, appear at the hearing and be represented by senior and junior counsel and a solicitor. Funding of the legal representation is subject to approval by the Attorney General.
6.3 The Conduct Division may also give permission for other people, including a complainant, to appear at the hearing and have legal representation.
6.4 The right to legal representation for persons appearing at a hearing of the Conduct Division is a matter for the discretion of the Division. Consistent with procedural fairness, the Commission is of the view, that as a general guide and wherever it is practicable to do so, the Conduct Division should consent to legal representation for persons appearing at its hearings.
6.5 In exercising its discretion to consent to legal representation, the main criteria the Division should consider include:
(a) is the witness incapable of representing him or herself?
(b) is the matter likely to affect an individual’s rights or interest?
(c) would the granting of representation enhance the fairness of the proceedings?
(d) would the proceedings be conducted with more efficiency and expedition if representation were or were not granted?
(e) would the cost of the hearing be reduced if representation were granted?
7.1 Report to Governor and others
If the Conduct Division has formed an opinion that the matter could justify Parliamentary consideration of the removal of the judicial officer complained about from office, it must present to the Governor a report setting out its findings of fact and that opinion. A copy of the report must also be furnished to the judicial officer concerned, the Commission, the Attorney General and the complainant. The copy to the complainant is provided only after it has been laid before each House of Parliament.
7.2 Report to the head of jurisdiction
If the Conduct Division forms an opinion that the matter is wholly or partly substantiated but does not justify Parliamentary consideration of the removal of the judicial officer complained about from office, it must send a report to the relevant head of jurisdiction setting out its conclusions. The report may also include recommendations as to what steps might be taken to deal with the complaint. A copy of this report is also provided to the judicial officer and the Commission.
8. Annual Report
The Act requires that certain information, including statistics and information about complaints finalised during the year, be reported to Parliament. This information appears in the Annual Report of the Commission, which can be found on the Commission’s website: www.judcom.nsw.gov.au.
Guidelines current as at 14 November 2022.