Guidelines for complaints against Judicial Officers

1. Overview 

The objective of the 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:  

(a) enhance public confidence in the judiciary of New South Wales; and,  

(b) promote good practices and high standards of judicial performance. 

The Judicial Officers Act 1986 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. 

These guidelines are designed to assist people to understand the Commission’s complaint function, including the principles and procedures adopted by the Judicial Commission. The detailed provisions of the complaint function are to be found in Part 6 of the legislation. 

2. Who is a judicial officer? 
2.1 A “judicial officer” under the Judicial Officers Act means a  
  • judge or associate judge of the Supreme Court; 
  • member (including a judicial 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 Judicial Officers Acrequires that a complaint is in writing and that it identifies the complainant and the judicial officer concerned. The Judicial Officers Regulation 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 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  

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. 

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[1]. 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 initial investigation will often involve an examination 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. 

5.3 Confidentiality 

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. 

5.4 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.  

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; 
  • 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.  

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 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. 

8.3 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 has provided valuable information for the further development of judicial education programs conducted by the Commission. 

8.4 The Commission may declare a person to be a vexatious complainant, 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.  

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. 

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). 

11.2 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)). 

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 Division. This will be under the direction of the 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 officer to undergo a medical or psychological examination (section 34). 

12. Hearings by the Conduct Division 

12.1 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)). 

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)). 

12.3 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. 

13. Reports of the Conduct Division 

13.1 Report to Governor and others 

If the 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 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 Judicial Officers Act 1986 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 is available in hard copy from the Commission or can be found on its website (www.judcom.nsw.gov.au). 

[1] 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.