|These guidelines are issued pursuant to section 10(1) of the Judicial Officers Act 1986 (the Act) to assist the Judicial Commission of NSW (the Commission) in the exercise of its functions with respect to the examination and management of complaints. 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 objective of the Commission’s complaint function, as set out under Part 6 of the Act, is to ensure that complaints about the ability and behaviour of judicial officers are investigated in a timely and effective manner in order to:
(a) enhance public confidence in the judiciary of New South Wales; and,
(b) promote good practices and high standards of judicial performance.
The Act provides a means for people to complain about the conduct of a judicial officer and to have those complaints examined by an independent body. An important role of the Commission is not only to receive and examine complaints made against judicial officers, but to determine which complaints require further action.
2. Who is a judicial officer?
2.1 A “judicial officer” under the Act means a–
- judge or associate judge of the Supreme Court;
- member of the Industrial Relations Commission;
- judge of the Land and Environment Court;
- judge of the District Court;
the president of the Children’s Court;
- magistrate; or,
- the president of the Civil and Administrative Tribunal.
2.2 The definition of “judicial officer” includes acting appointments to a judicial office but does not include arbitrators, registrars, chamber registrars, assessors, members of tribunals or legal representatives.
2.3 The Commission has no power to examine complaints against federal judicial officers or a person who is no longer a judicial officer.
3. Making a Complaint
3.1 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.
3.2 Legislative requirements
The Act requires that a complaint is in writing and that it identifies the complainant and the judicial officer concerned. The Judicial Officers Regulation 2022 requires that particulars of a complaint are verified by statutory declaration and that the complaint is lodged with the Chief Executive to the Commission.
3.3 Assistance to complainants
If a person cannot write, he or she may contact the Commission and assistance will be provided to put the complaint in writing. If interpreting or translation assistance from another language to English is required, the Commission will make arrangements.
3.4 Advice to the public
The Commission provides further advice to the public about the complaints process through:
- its website which provides an easy-to-understand guide to the Commission’s complaints process, detailed information about possible outcomes of complaints, and a complaints form for downloading;
- 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; and,
- giving talks on the complaints process to interested groups.
3.5 Acknowledge receipt of complaints
All complaints submitted to the Commission in proper form will be acknowledged in writing within one week of receipt.
4. Complaints not within the Commission’s jurisdiction
4.1 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.
4.2 If the Commission suspects on reasonable grounds that there is any matter that concerns or may concern corrupt conduct, the allegations of corruption against a judicial officer are required to be referred by the Commission to the Independent Commission Against Corruption for investigation by that body, in accordance with section 11 of the Independent Commission against Corruption Act 1988.
5. Investigating a Complaint
5.1 Receipt of a complaint
On receiving a complaint, the Commission will conduct a preliminary examination into the matter. In every case, the judicial officer is advised of the fact that a complaint has been made and provided with a copy of the complaint documentation, and if deemed necessary by the Commission, a response may be sought from the judicial officer.
5.2 Preliminary examination
The preliminary examination of all complaints must be undertaken by Commission Members at a properly constituted meeting of the Commission. The quorum for a meeting is seven Members, of whom at least one must be an Appointed Member*. The Commission cannot delegate the preliminary examination of a complaint except to a committee, which must consist entirely of Members and include at least one Appointed Member.
The preliminary examination will often involve the Commission’s consideration of transcripts, sound recordings, judgments, court files and other relevant material. It may also involve taking statements from relevant persons. If necessary, a response to the complaint is sought from the judicial officer.
In conducting a preliminary examination, the Commission may initiate such inquiries into the subject-matter of the complaint as it thinks appropriate (section 18(2) of the Act).
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. However, disclosure to other State agencies, of relevant court file numbers or the details to parties to the proceedings may be necessary for the purpose of examining complaints.
5.4 Time standards for finalisation of investigations
The Commission aims to deal with all complaints as efficiently and expeditiously as possible. The length of time taken to resolve a complaint may depend on the seriousness and complexity of the complaint. There may be a delay in the processing of a complaint for a number of reasons, including waiting on transcripts or sound recordings from courts, and seeking further information from other parties or agencies. The Commission aims to finalise the investigation of 90% of complaints within six months of receipt and 100% within 12 months of receipt.
6. Complaints against a judicial member of the Commission
A judicial member of the Commission will not participate in any discussions or decisions involving complaints against him or her.
7. 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.
The Commission will act in accordance with the principles of natural justice in conducting its examination of a complaint. Before referring a matter to the head of jurisdiction or the Conduct Division, the Commission provides the judicial officer with an opportunity to respond to the complaint and to present additional information that may assist the Commission in its investigation into the matter.
8. Summary Dismissal
8.1 A complaint must be summarily dismissed if one or more of the grounds under section 20(1) of the Act exist, whether or not it appears to be substantiated. These grounds are:
- 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;
- there is, or was available, a satisfactory means of redress or of dealing with the complaint or the subject-matter of the complaint;
- the complaint relates to the exercise of a judicial or other function, that is or was subject to an adequate appeal or review rights;
- the person who is the subject of the complaint is no longer a judicial officer; or,
- having regard to all the circumstances of the case, further consideration of the complaint is unnecessary or unjustifiable.
The Commission, in deciding whether or not to summarily dismiss a complaint, may have regard to such matters as it thinks fit.
8.2 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 Act 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.
8.3 The Commission may declare a person to be a vexatious complainant under section 38 of the Act, if the person habitually and persistently, and mischievously or without any reasonable grounds, makes complaints. This section applies whether the complaints are about the same or different judicial officers.
The Commission may disregard any complaint made by the person while the declaration is in force.
8.4 The Commission’s decision on a complaint is final and there is no further avenue of appeal or review of the decision.
9. Reference to a head of jurisdiction
9.1 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.
9.2 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.
9.3 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.
9.4 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.
10. Reference to the Conduct Division
10.1 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.
10.2 The function of a Conduct Division is to examine and deal with a particular complaint that has been referred to it by the Commission.
10.3 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.
10.4 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 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.
10.5 All complaints referred to the Conduct Division must be dealt with in accordance with the Commission’s guideline: “Conduct Division: Guidelines for the examination of complaints”, which is available on the Commission’s website here: Conduct Division: guidelines for the examination of complaints – Judicial Commission of New South Wales (nsw.gov.au)
11. Examination of a complaint by the Conduct Division
11.1 The Conduct Division must conduct an examination of the complaint referred to it (section 23 of the Act).
11.2 In conducting the initial examination or investigation of a complaint referred to it by the Commission section 23(3) of the Act requires that, as far as practicable, this will take place in private.
11.3 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.
11.4 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.
11.5 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 office, it may request the judicial officer to undergo a medical or psychological examination (section 34).
12. Hearings by the Conduct Division
12.1 Section 24(2) of the Act 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.
12.2 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).
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.
13. Reports of the Conduct Division
13.1 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 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.
13.2 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.
14. 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. The Report can be found on the Commission’s website (www.judcom.nsw.gov.au).
* Appointed Members are persons appointed by the Governor on the nomination of the Minister and who, in the opinion of the Minister, have high standing in the community.
Guidelines current as at 14 November 2022.