The Judicial Commission’s complaint function
The object of the Judicial Commission’s complaint function is to ensure that complaints about the ability and behaviour of judicial officers are investigated in a timely and effective manner in order to:
- enhance public confidence in the judiciary of NSW and
- promote good practices and high standards of judicial performance.
The Commission’s complaint function is to investigate a complaint, not to discipline a judicial officer. There is no power in the Commission or the Conduct Division, or the head of jurisdiction, to impose any form of punishment on a judicial officer. The Commission is not a disciplinary body and has not been invested with such powers. It cannot punish a judicial officer by imposing fines, demotions or similar penalties.
Who is a judicial officer?
A “judicial officer” under the Judicial Officers Act 1986 means:
- a judge or associate judge of the Supreme Court of NSW
- a member of the Industrial Relations Commission of NSW
- a judge of the Land and Environment Court of NSW
- a judge of the District Court of NSW
- the President of the Children’s Court of NSW
- a magistrate, or
- the President of the Civil and Administrative Tribunal.
The definition of “judicial officer” includes acting appointments to a judicial office but does not include arbitrators, registrars, assessors, members of tribunals or legal practitioners.
The Commission has no power to examine complaints against federal judicial officers or a person who is no longer a judicial officer.
Who can make a complaint?
A complaint may be made to the Commission by any person or may be referred to the Commission by the Attorney General.
The Judicial Officers Act requires that a complaint is in writing and that it identifies the complainant and the judicial officer concerned. The Judicial Officers Regulation 2017 requires that particulars of a complaint are verified by statutory declaration and that the complaint is lodged with the Chief Executive to the Commission.
Assistance to complainants
The Commission provides assistance and advice to the public about the complaints process through:
- its website
- a plain English brochure outlining the complaints process
- assistance to potential complainants with translation and interpreting services
- responding to telephone and face-to-face enquiries.
Complaints not within the Commission’s jurisdiction
The Commission does not review a case for judicial error, mistake, or other legal ground. Reviews of those matters are the function of appellate courts. Allegations of corruption against a judicial officer are required to be referred by the Judicial Commission to the Independent Commission Against Corruption for investigation by that body.
Acknowledge receipt of complaints
In most cases, complaints submitted to the Commission will be acknowledged in writing within one week of receipt.
Investigating a complaint
On receiving a complaint, the Commission will conduct a preliminary investigation into the matter. In every case, the judicial officer is advised of the fact that a complaint is made to the Commission and provided with a copy of the documentation.
The Commission conducts a thorough investigation of every complaint received, which often involves an examination of transcripts, sound recordings, judgments and other material relevant to the complaint. If necessary, a response to the complaint is sought from the judicial officer.
The preliminary examination of a complaint by the Commission will be conducted, as far as practicable, on a confidential basis. The legislative requirement of confidentiality protects the judiciary from unjust criticism and protects those who furnish information to the Commission in the course of its examination of a complaint.
The proceedings of the Commission and all information and materials, written or oral, obtained by the Commission in the course of its preliminary examination are confidential.
Time standards for finalisation of investigations
The Commission aims to finalise the investigation of 90% of complaints within six months of receipt and 100% within 12 months of receipt.
Action following preliminary examination
Following its preliminary examination, the Commission must take one of the following actions:
- summarily dismiss the complaint
- refer the complaint to the relevant head of jurisdiction, or
- refer the complaint to the Conduct Division.
Summary dismissal of a complaint
A complaint must be summarily dismissed if one or more of the following grounds exist:
- the complaint is one that the Commission is required not to deal with
- the complaint is frivolous, vexatious or not in good faith
- the subject matter of the complaint is trivial
- the matter complained about occurred at too remote a time to justify further consideration
- 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
- the person who is the subject of the complaint is no longer a judicial officer, or
- in all the circumstances further consideration of the complaint is unnecessary or unjustifiable.
Where a complaint is summarily dismissed the Commission will, as soon as practicable after its determination is made, inform the complainant in writing and provide the reasons for dismissing the complaint. This will include a reference to the relevant provisions of the legislation that have been applied in the handling and determination of the complaint. The judicial officer will also be advised in writing of the Commission’s determination.
Many of the complaints that are dismissed by the Commission, because they disclose no misconduct, are nonetheless helpful in the improvement of the judicial system. The feedback from the examination of complaints provides valuable information for the further development of judicial education programs conducted by the Commission.
Referral of a complaint to a head of jurisdiction
Where a complaint has not been dismissed following the preliminary examination by the Commission, but in its opinion it does not justify reference to the Conduct Division, the Commission may refer the matter to the relevant head of jurisdiction.
The Commission will notify the head of jurisdiction in writing of its decision and will formally refer the matter, including all relevant material, for attention.
In referring a complaint to the head of jurisdiction, the Commission may include recommendations as to what steps might be taken to deal with the complaint, such as counselling by the head of jurisdiction.
Where a complaint is referred to the relevant head of jurisdiction, the Commission will, as soon as practicable after the decision is made, advise the complainant and judicial officer of the action taken.
In relation to a complaint referred to the head of jurisdiction, the head of jurisdiction may counsel the judicial officer or make administrative arrangements within his or her court which are designed to avoid a recurrence of a problem.
Referral of a complaint to the Conduct Division
Where a complaint has not been dismissed following the preliminary examination by the Commission, and has not been referred to the head of jurisdiction, it must be referred to the Conduct Division.
The function of a Conduct Division is to examine and deal with a particular complaint that has been referred to it by the Commission.
The Conduct Division comprises 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.
Where a complaint is referred to the Conduct Division, the Commission will, as soon as practicable after the decision is made, advise the complainant and the judicial officer of the action taken.
The Conduct Division of the Commission
The function of a Conduct Division of the Commission is to examine and deal with a particular complaint that has been referred to it by the Commission. 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.
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.
The ultimate power of a Conduct Division in relation to a complaint is to make a report to the Governor, setting out its findings as to whether the complaint that has been investigated is wholly or partly substantiated, and whether it could justify Parliamentary consideration of the removal of the judicial officer from office. In New South Wales the holder of a judicial office can only be removed by the Governor on an address from both Houses of Parliament seeking removal on the ground of proved misbehaviour or incapacity (section 53 of the Constitution Act 1902).
Report to the Governor and others
If the Conduct Division forms an opinion that a complaint 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 to the complainant. The copy to the complainant is provided only after it has been laid before each House of Parliament.
Report to the relevant head of jurisdiction
If the Conduct Division forms an opinion that a complaint 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.
The Judicial Officers Act requires that certain information, including statistics and information about complaints disposed of during the year, be reported to Parliament. This information appears in the Annual Report of the Commission. The Report can be found on the Commission’s website.
The above information is current as at September 2019.