Judicial Conduct Commissioner and Judicial Conduct Panel (Deputy Commissioner and Disposal of Complaints) Amendment Act 2010

1: Title
This Act is the Judicial Conduct Commissioner and Judicial Conduct Panel (Deputy Commissioner and Disposal of Complaints) Amendment Act 2010.
2: Commencement
This Act comes into force on the day after the date on which it receives the Royal assent.
3: Principal Act amended
This Act amends the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 2010-03-23 Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 Deputy Commissioner
4: Interpretation
1: Section 5 Deputy Commissioner section 8A .
2: Section 5 Judicial Conduct Commissioner Commissioner Judicial Conduct Commissioner Commissioner
a: means a Judicial Conduct Commissioner appointed under section 7
b: in sections 11 to 20 34 clauses 7, 9, and 10 of Schedule 2 .
5: Heading above section 7 amended
The heading above section 7 and Deputy Judicial Conduct Commissioner
6: Functions and powers
1: The heading to section 8 of Commissioner
2: Section 8
1A: In carrying out his or her functions in relation to a complaint, the Commissioner may decide that he or she has a conflict of interest in relation to the complaint.
1B: The functions of the Commissioner—
a: must not be carried out by the Commissioner if they relate to a complaint in relation to which the Commissioner has decided that he or she has a conflict of interest; and
b: are not carried out by the Commissioner in relation to any complaints in the situations specified in section 8B(1)(b)(i) and (ii).
1C: The Commissioner must refer promptly to the Head of Bench a complaint—
a: referred to the Commissioner by the Deputy Commissioner under section 8B(4); and
b: in relation to which the Commissioner has decided that he or she has a conflict of interest.
7: New sections 8A and 8B inserted
The following sections are inserted after section 8
8A: Deputy Judicial Conduct Commissioner
1: An office called the Deputy Judicial Conduct Commissioner is established.
2: The Deputy Commissioner is appointed by the Governor-General on the recommendation of the House of Representatives.
3: Before a recommendation may be made under subsection (2)
4: A person is not to be regarded as being employed in the service of the Crown for the purposes of the State Sector Act 1988 or the Government Superannuation Fund Act 1956 solely because of his or her appointment as the Deputy Commissioner.
8B: Function and powers of Deputy Commissioner
1: The function of the Deputy Commissioner is to carry out the functions of the Commissioner in relation to the following complaints (and no others):
a: complaints (other than those that the Deputy Commissioner has referred to the Commissioner under subsection (4)
b: complaints of any kind in 1 or more of the following situations:
i: during the absence from office of the Commissioner:
ii: if the Commissioner is incapacitated in a way that affects the carrying out of his or her functions:
iii: during a vacancy in the office of Commissioner.
2: In carrying out his or her function in relation to a complaint, the Deputy Commissioner may decide that he or she has a conflict of interest in relation to the complaint.
3: After deciding that he or she has a conflict of interest in relation to a complaint, the Deputy Commissioner must—
a: not carry out his or her function in relation to the complaint; and
b: promptly refer the complaint to the Head of Bench (unless the Deputy Commissioner refers the complaint to the Commissioner as soon as practicable under subsection (4)
4: The Deputy Commissioner may refer a complaint to the Commissioner as soon as practicable (instead of referring it promptly to the Head of Bench under subsection (3)(b)
a: is carrying out the Commissioner's functions in relation to the complaint in 1 or more of the situations specified in subsection (1)(b)(i) to (iii)
b: decides that he or she has, in relation to the complaint, a conflict of interest; but
c: believes on reasonable grounds, after consulting the complainant (if any), that the Commissioner is likely to be able to begin to deal with the complaint within a reasonable time.
5: The Deputy Commissioner has all the powers necessary for carrying out his or her function.
6: The fact that the Deputy Commissioner carries out a function or exercises a power is, in the absence of proof to the contrary, sufficient evidence of the Deputy Commissioner’s authority to do so.
8: Duty to act independently
Section 9
2: The Deputy Commissioner must act independently in carrying out his or her function.
9: Other provisions relating to Commissioner
1: The heading to section 10 and Deputy Commissioner
2: Section 10 and the Deputy Commissioner
3: Part 1 of Schedule 2 Schedule 1 Disposal of complaints
10: Commissioner must conduct preliminary examination
1: Section 15(1)
a: there are any grounds for exercising his or her power under section 15A
b: there are any grounds for dismissing the complaint under section 16; or
c: the subject matter of the complaint, if substantiated, could warrant referral of the complaint to the Head of Bench under section 17; or
d: the subject matter of the complaint, if substantiated, could warrant consideration of the removal of the Judge from office by way of a recommendation under section 18.
2: Section 15(5)
aa: exercise his or her power to take no further action in respect of the complaint ( section 15A .
3: Schedule 1 Schedule 2
11: New section 15A inserted
The following section is inserted after section 15
15A: Commissioner’s power in certain circumstances to take no further action in respect of complaints
1: The Commissioner may take no further action in respect of a complaint if satisfied that further consideration of the complaint would, in all the circumstances, be unjustified.
2: Reasons why further consideration of a complaint would, in all the circumstances, be unjustified, may be or include all or any of the following that apply to the complaint:
a: that the complaint has been resolved to the complainant’s satisfaction following an explanation from the Judge who is the subject of the complaint:
b: that the complaint is genuine and made in good faith, but is based on a misunderstanding:
c: that the complaint is one in respect of which the Commissioner, having started the preliminary examination required by section 15, concludes that there is no reasonable prospect of there being available to him or her information that would enable him or her to form an opinion on the matters specified in section 15(1)(b), (c), and (d)
3: The fact that a complaint has been resolved to the complainant’s satisfaction because of an apology by the Judge who is the subject of the complaint is not, by itself, a reason why further consideration of a complaint would, in all the circumstances, be unjustified.
4: Subsection (2) subsection (1)
5: If the Commissioner exercises his or her power under this section to take no further action in respect of a complaint, he or she must give the complainant and the Judge who is the subject of the complaint written notification stating—
a: that the Commissioner has exercised that power; and
b: the grounds on which he or she is satisfied that further consideration of the complaint would, in all the circumstances, be unjustified.
12: Commissioner must dismiss complaints that fail to meet required threshold
1: Section 16(1)
i: he or she has considered or previously considered the subject matter of the complaint, and that subject matter could not, if substantiated, warrant either referral to the Head of Bench under section 17 or consideration of the removal of the Judge from office by way of a recommendation under section 18.
2: Section 16
1A: The Commissioner has previously considered the subject matter of the complaint for the purposes of subsection (1)(i) if he or she has exercised his or her power under section 15A
1B: Subsection (1A)
13: Commissioner’s power to refer complaints to Head of Bench
Section 17(1)
a: exercises his or her power under section 15A
b: dismisses the complaint under section 16; or
c: recommends under section 18 that a Judicial Conduct Panel be appointed. Savings provision
14: New heading and new section 36 inserted
The following heading and section are inserted after section 35 Savings provision
36: Amendments do not apply to certain complaints
Complaints made before the commencement of the Judicial Conduct Commissioner and Judicial Conduct Panel (Deputy Commissioner and Disposal of Complaints) Amendment Act 2010 must be dealt with as if that Act had not been enacted. Related amendments to other Acts
15: Coroners Act 2006 amended
1: This section amends the Coroners Act 2006
2: Section 113(2) or the Deputy Commissioner the Commissioner 2010-03-23 Coroners Act 2006
16: Official Information Act 1982 amended
1: This section amends the Official Information Act 1982
2: Paragraph (l)(i) of the definition of official information section 2(1) the Deputy Judicial Conduct Commissioner, the Judicial Conduct Commissioner,
3: Section 2(6)(f) , the Deputy Judicial Conduct Commissioner, the Judicial Conduct Commissioner 2010-03-23 Official Information Act 1982