Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004

1: Title
This Act is the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004.
2: Commencement
1: This Act comes into force on a date to be appointed by the Governor-General by Order in Council; and 1 or more Orders in Council may be made appointing different dates for different provisions and different purposes.
2: An order under this section is secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 2(1) brought into force 1 August 2005 section 2 Judicial Conduct Commissioner and Judicial Conduct Panel Act Commencement Order 2005 Section 2(2) inserted 28 October 2021 section 3 Secondary Legislation Act 2021 Preliminary provisions
3: Overview of process
1: A diagrammatic overview of the process established by this Act is set out in Schedule 1
2: The diagram is intended as a guide only.
4: Purpose
The purpose of this Act is to enhance public confidence in, and to protect the impartiality and integrity of, the judicial system by—
a: providing a robust investigation process to enable informed decisions to be made about the removal of Judges from office:
b: establishing an office for the receipt and assessment of complaints about the conduct of Judges:
c: providing a fair process that recognises and protects the requirements of judicial independence and natural justice.
5: Interpretation
In this Act, unless the context otherwise requires,— associate coroner Coroners Act 2006 complaint complaint about a Judge
a: means a complaint under section 11
b: includes—
i: a referral made under section 12(2)
ii: a complaint initiated under section 12(3) coroner , deputy chief coroner, Coroners Act 2006 Deputy Commissioner section 8A District Court Judge
a: holds office as the chief coroner or acting chief coroner, or as a relief coroner, under the Coroners Act 2006 section 22(a)
b: is exercising the judicial authority conferred on a coroner by the Coroners Act 2006 Head of Bench
a: in relation to the Supreme Court, the Chief Justice:
b: in relation to the Court of Appeal, the President of the Court of Appeal:
c: in relation to the High Court, the Chief High Court Judge:
d: in relation to the Employment Court, the Chief Judge of the Employment Court:
eaa: in relation to the Court Martial, the Judge Advocate General:
e: in relation to the Court Martial Appeal Court, the Chief High Court Judge:
ea: in relation to the Summary Appeal Court of New Zealand, the Judge Advocate General:
f: in relation to the District Court
g: in relation to the Environment Court, the Chief Environment Court Judge
h: in relation to the Maori Land Court, the Chief Judge of the Maori Land Court:
i: in relation to a coroner or an associate coroner, the chief coroner Judge
a: means—
i: a Judge of the Supreme Court; or
ii: a Judge of the Court of Appeal; or
iii: a Judge or an Associate Judge of the High Court; or
iv: a Judge of the Employment Court; or
iva: a Judge of the Court Martial; or
v: a Judge of the Court Martial Appeal Court
vi: a District Court Judge; or
vii: a Judge of the Environment Court; or
viii: a Judge of the Maori Land Court; or
ix: a coroner or an associate coroner; and
b: includes a person who holds office as an acting Judge, or an acting Associate Judge; but
c: does not include a retired Judge or a former Judge 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 section 8A section 8B Judicial Conduct Panel Panel section 21(1) Section 5 associate coroner inserted 5 April 2023 section 36 Coroners Amendment Act 2023 Section 5 coroner inserted 1 July 2007 section 145 Coroners Act 2006 Section 5 coroner amended 21 July 2016 section 75 Coroners Amendment Act 2016 Section 5 Deputy Commissioner inserted 23 March 2010 section 4(1) Judicial Conduct Commissioner and Judicial Conduct Panel (Deputy Commissioner and Disposal of Complaints) Amendment Act 2010 Section 5 District Court Judge inserted 1 July 2007 section 145 Coroners Act 2006 Section 5 District Court Judge amended 1 March 2017 section 261 District Court Act 2016 Section 5 Head of Bench inserted 1 July 2009 section 87 Court Martial Act 2007 Section 5 Head of Bench substituted 1 July 2009 section 35 Court Martial Appeals Amendment Act 2007 Section 5 Head of Bench inserted 1 July 2009 section 81 Armed Forces Discipline Amendment Act (No 2) 2007 Section 5 Head of Bench amended 1 March 2017 section 261 District Court Act 2016 Section 5 Head of Bench amended 1 July 2020 section 109 Resource Management Amendment Act 2020 Section 5 Head of Bench substituted 1 July 2007 section 145 Coroners Act 2006 Section 5 Head of Bench replaced 5 April 2023 section 36 Coroners Amendment Act 2023 Section 5 Judge inserted 1 July 2009 section 87 Court Martial Act 2007 Section 5 Judge amended 1 July 2009 section 35 Court Martial Appeals Amendment Act 2007 Section 5 Judge substituted 1 July 2007 section 145 Coroners Act 2006 Section 5 Judge replaced 5 April 2023 section 36 Coroners Amendment Act 2023 Section 5 Judge replaced 1 March 2017 section 183(b) Senior Courts Act 2016 Section 5 Judicial Conduct Commissioner Commissioner substituted 23 March 2010 section 4(2) Judicial Conduct Commissioner and Judicial Conduct Panel (Deputy Commissioner and Disposal of Complaints) Amendment Act 2010
6: This Act binds the Crown
This Act binds the Crown. Judicial Conduct Commissioner and Deputy Judicial Conduct Commissioner Heading amended 23 March 2010 section 5 Judicial Conduct Commissioner and Judicial Conduct Panel (Deputy Commissioner and Disposal of Complaints) Amendment Act 2010
7: Judicial Conduct Commissioner
1: An office called the Judicial Conduct Commissioner is established.
2: The 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), the Attorney-General must consult the Chief Justice about the proposed appointment and must advise the House of Representatives that the Chief Justice has been consulted.
4: A person is not to be regarded as being employed in the service of the Crown for the purposes of the Public Service Act 2020 Government Superannuation Fund Act 1956 1988 No 2 s 4 Section 7(4) amended 7 August 2020 section 135 Public Service Act 2020
8: Functions and powers
of Commissioner
1: The functions of the Commissioner are—
a: to receive complaints about Judges and to deal with the complaints in the manner required by this Act:
b: to conduct preliminary examinations of complaints:
c: in appropriate cases, to recommend that a Judicial Conduct Panel be appointed to inquire into any matter or matters concerning the conduct of a Judge.
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)
b: in relation to which the Commissioner has decided that he or she has a conflict of interest.
2: It is not a function of the Commissioner to challenge or call into question the legality or correctness of any instruction, direction, order, judgment, or other decision given or made by a Judge in relation to any legal proceedings.
3: The Commissioner has all the powers necessary for carrying out his or her functions. Judicial Officers Act 1986 s 14 (NSW) Section 8 heading amended 23 March 2010 section 6(1) Judicial Conduct Commissioner and Judicial Conduct Panel (Deputy Commissioner and Disposal of Complaints) Amendment Act 2010 Section 8(1A) inserted 23 March 2010 section 6(2) Judicial Conduct Commissioner and Judicial Conduct Panel (Deputy Commissioner and Disposal of Complaints) Amendment Act 2010 Section 8(1B) inserted 23 March 2010 section 6(2) Judicial Conduct Commissioner and Judicial Conduct Panel (Deputy Commissioner and Disposal of Complaints) Amendment Act 2010 Section 8(1C) inserted 23 March 2010 section 6(2) Judicial Conduct Commissioner and Judicial Conduct Panel (Deputy Commissioner and Disposal of Complaints) Amendment Act 2010
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 Public Service Act 2020 Section 8A inserted 23 March 2010 section 7 Judicial Conduct Commissioner and Judicial Conduct Panel (Deputy Commissioner and Disposal of Complaints) Amendment Act 2010 Section 8A(4) amended 7 August 2020 section 135 Public Service Act 2020
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)) in relation to which the Commissioner has decided that he or she has a conflict of interest; and
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:
iv: if the Commissioner decides to refer a complaint to the Deputy 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)) if the Deputy Commissioner—
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); and
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. Section 8B inserted 23 March 2010 section 7 Judicial Conduct Commissioner and Judicial Conduct Panel (Deputy Commissioner and Disposal of Complaints) Amendment Act 2010 Section 8B(1)﻿(b)﻿(iv) inserted 26 March 2015 section 4 Judicial Conduct Commissioner and Judicial Conduct Panel Amendment Act 2015
9: Duty to act independently
1: The Commissioner must act independently in carrying out his or her functions.
2: The Deputy Commissioner must act independently in carrying out his or her function. Section 9(2) added 23 March 2010 section 8 Judicial Conduct Commissioner and Judicial Conduct Panel (Deputy Commissioner and Disposal of Complaints) Amendment Act 2010
10: Other provisions relating to Commissioner
and Deputy Commissioner Part 1 and the Deputy Commissioner Section 10 heading amended 23 March 2010 section 9(1) Judicial Conduct Commissioner and Judicial Conduct Panel (Deputy Commissioner and Disposal of Complaints) Amendment Act 2010 Section 10 amended 23 March 2010 section 9(2) Judicial Conduct Commissioner and Judicial Conduct Panel (Deputy Commissioner and Disposal of Complaints) Amendment Act 2010 Complaints about Judges
11: Which complaints must be dealt with
1: The Commissioner must receive and deal with every complaint made under this section about the conduct of a Judge regardless of whether the subject matter of the complaint arises in the exercise of the Judge's judicial duties or otherwise.
2: The Commissioner must receive and deal with a complaint even though the subject matter of the complaint constitutes or may constitute a criminal offence (whether or not dealt with, or being dealt with, by a court).
3: The Commissioner must deal with a complaint by—
a: taking the steps set out in section 14
b: conducting a preliminary examination under section 15
c: taking any other appropriate steps set out in sections 16 to 19
4: If different persons make separate complaints about the same matter, the Commissioner may deal with those complaints together under sections 14 to 19
5: This section is subject to section 34 Judicial Officers Act 1986 s 15 (NSW)
12: Who may complain
1: Any person may make a complaint under section 11
2: The Attorney-General may refer to the Commissioner any matter or matters concerning the conduct of a Judge.
3: The Commissioner may, on his or her own initiative, treat as a complaint any matter or matters concerning the conduct of a Judge.
4: The power conferred by subsection (3) includes (without limitation) the power to treat as a single complaint under sections 14 to 19 Judicial Officers Act 1986 ss 15, 16 (NSW)
13: How to complain
1: A complaint about a Judge must be made to the Commissioner and—
a: be in writing; and
b: identify the Judge who is the subject of the complaint; and
c: identify the complainant; and
d: state the subject matter of the complaint.
2: The Commissioner may require a complainant to complete a statutory declaration setting out the matters in subsection (1)﻿(b) to (d).
3: The Commissioner must give reasonable assistance to any person who wishes to make a complaint to assist that person to meet the requirements of this section.
4: Subsections (1) to (3) do not apply to a complaint initiated by the Commissioner. Judicial Officers Act 1986 s 17 (NSW)
14: Commissioner must acknowledge complaint and deal with it promptly
1: Without delay after receiving a complaint, the Commissioner must—
a: send a written acknowledgement to the complainant (if any); and
b: send to the Judge who is the subject of the complaint a written notification of the complaint.
2: The Commissioner may send a copy of the complaint to the Judge.
3: The Judge is entitled to request and receive a copy of the complaint.
4: The Commissioner must deal with a complaint as soon as practicable after receiving it.
5: Subsections (1), (2), and (4) are subject to subsections (6) and (7).
6: If the Commissioner is satisfied, following consultation with the relevant Head of Bench, that notifying the Judge of the complaint under subsection (1) could prejudice any court proceedings, the Commissioner may defer that step.
7: If the Commissioner is satisfied, following consultation with the relevant Head of Bench, that the matter being or to be dealt with by the Commissioner is being dealt with by a court or that for any other reason the Commissioner should defer dealing with the complaint, the Commissioner may defer dealing with it.
15: Commissioner must conduct preliminary examination
1: The Commissioner must conduct a preliminary examination of each complaint and form an opinion as to whether—
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
c: the subject matter of the complaint, if substantiated, could warrant referral of the complaint to the Head of Bench under section 17
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: In the course of the preliminary examination, the Commissioner may seek the Judge's response to the complaint.
3: In conducting a preliminary examination, the Commissioner must act in accordance with the principles of natural justice.
4: For the purpose of a preliminary examination, the Commissioner may—
a: make any inquiries into the complaint that he or she thinks appropriate:
b: obtain any court documents (including, for example, the transcript of a hearing) that are relevant to an inquiry under paragraph (a):
c: consult the Head of Bench.
5: Having completed the preliminary examination and formed the opinion required by subsection (1), the Commissioner must take one of the following steps:
aa: exercise his or her power to take no further action in respect of the complaint ( section 15A
a: dismiss the complaint ( section 16
b: refer the complaint to the Head of Bench ( section 17
c: recommend that the Attorney-General appoint a Judicial Conduct Panel to inquire into any matter or matters concerning the conduct of a Judge ( section 18 Judicial Officers Act 1986 s 18 (NSW) Section 15(1)﻿(a) substituted 23 March 2010 section 10(1) Judicial Conduct Commissioner and Judicial Conduct Panel (Deputy Commissioner and Disposal of Complaints) Amendment Act 2010 Section 15(1)﻿(b) substituted 23 March 2010 section 10(1) Judicial Conduct Commissioner and Judicial Conduct Panel (Deputy Commissioner and Disposal of Complaints) Amendment Act 2010 Section 15(1)﻿(c) added 23 March 2010 section 10(1) Judicial Conduct Commissioner and Judicial Conduct Panel (Deputy Commissioner and Disposal of Complaints) Amendment Act 2010 Section 15(1)﻿(d) added 23 March 2010 section 10(1) Judicial Conduct Commissioner and Judicial Conduct Panel (Deputy Commissioner and Disposal of Complaints) Amendment Act 2010 Section 15(5)﻿(aa) inserted 23 March 2010 section 10(2) Judicial Conduct Commissioner and Judicial Conduct Panel (Deputy Commissioner and Disposal of Complaints) Amendment Act 2010
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
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. Section 15A inserted 23 March 2010 section 11 Judicial Conduct Commissioner and Judicial Conduct Panel (Deputy Commissioner and Disposal of Complaints) Amendment Act 2010
16: Commissioner must dismiss complaints that fail to meet required threshold
1: The Commissioner must dismiss the complaint if the Commissioner
a: the complaint is not within the Commissioner's jurisdiction; or
b: the complaint has no bearing on judicial functions or judicial duties; or
c: the requirements of sections 12 13
d: the complaint is frivolous, vexatious, or not in good faith; or
e: the subject matter of the complaint is trivial; or
f: 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; or
g: the person who is the subject of the complaint is no longer a Judge; or
h: the subject matter of the complaint was considered before the commencement of this section by the Head of Bench or the Judicial Complaints Lay Observer; or
i: he or she has previously considered the subject matter of the complaint, and the complaint fails to raise any issue of significance that he or she has not previously considered.
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) does not limit subsection (1)﻿(i).
2: If the Commissioner dismisses a complaint under this section, he or she must give the complainant and the Judge who is the subject of the complaint written notification stating—
a: that the complaint has been dismissed; and
b: the grounds on which that decision was made. Judicial Officers Act 1986 s 20 (NSW) Section 16(1) amended 26 March 2015 section 5(1) Judicial Conduct Commissioner and Judicial Conduct Panel Amendment Act 2015 Section 16(1)﻿(i) replaced 26 March 2015 section 5(2) Judicial Conduct Commissioner and Judicial Conduct Panel Amendment Act 2015 Section 16(1A) inserted 23 March 2010 section 12(2) Judicial Conduct Commissioner and Judicial Conduct Panel (Deputy Commissioner and Disposal of Complaints) Amendment Act 2010 Section 16(1B) inserted 23 March 2010 section 12(2) Judicial Conduct Commissioner and Judicial Conduct Panel (Deputy Commissioner and Disposal of Complaints) Amendment Act 2010
17: Commissioner's power to refer complaints to Head of Bench
1: The Commissioner must refer a complaint to the Head of Bench unless the Commissioner—
a: exercises his or her power under section 15A
b: dismisses the complaint under section 16
c: recommends under section 18
2: If the Commissioner refers a complaint to the Head of Bench, the Commissioner must advise the complainant and the Judge who is the subject of the complaint of that action.
3: This section is subject to section 113(2) Judicial Officers Act 1986 s 21 (NSW) Section 17(1)﻿(a) substituted 23 March 2010 section 13 Judicial Conduct Commissioner and Judicial Conduct Panel (Deputy Commissioner and Disposal of Complaints) Amendment Act 2010 Section 17(1)﻿(b) substituted 23 March 2010 section 13 Judicial Conduct Commissioner and Judicial Conduct Panel (Deputy Commissioner and Disposal of Complaints) Amendment Act 2010 Section 17(1)﻿(c) added 23 March 2010 section 13 Judicial Conduct Commissioner and Judicial Conduct Panel (Deputy Commissioner and Disposal of Complaints) Amendment Act 2010 Section 17(3) added 1 July 2007 section 145 Coroners Act 2006
18: Commissioner's power to recommend that Attorney-General appoint Judicial Conduct Panel
1: The Commissioner may recommend to the Attorney-General that he or she appoint a Judicial Conduct Panel to inquire into any matter or matters concerning the alleged conduct of a Judge if the Commissioner is of the opinion that—
a: an inquiry into the alleged conduct is necessary or justified; and
b: if established, the conduct may warrant consideration of removal of the Judge.
2: The Commissioner must give reasons with his or her recommendation under subsection (1).
3: The Commissioner must give the complainant and the Judge who is the subject of the complaint written notification of any action taken under subsection (1). Judicial Officers Act 1986 s 22 (NSW)
19: Commissioner's duty of confidentiality
1: The Commissioner and every person employed in the office of the Commissioner—
a: must keep confidential all matters that come to their knowledge in the performance of their functions; and
b: must not communicate any of those matters to any person except for the purpose of carrying out their functions under or giving effect to this Act.
2: The Commissioner and every person employed in the office of the Commissioner—
a: are officers of a department for the purposes of sections 78 78A section 20A
b: are officials for the purposes of sections 105
3: Nothing in information privacy principle 6 section 22 section 7(1) 1988 No 2 s 32 Section 19(3) replaced 1 December 2020 section 217 Privacy Act 2020
20: Commissioner must make files available to Attorney-General and special counsel
1: If the Commissioner recommends that a Judicial Conduct Panel be appointed,—
a: the Attorney-General is entitled to request the relevant files kept by the Commissioner; and
b: the Commissioner must, on the Attorney-General's request, make the files available to the Attorney-General.
2: If a Judicial Conduct Panel is appointed,—
a: the special counsel appointed under section 28
b: the Commissioner must, on the request of either counsel, make the files available to that counsel. Judicial Conduct Panel
21: Appointment of Judicial Conduct Panel
1: The Attorney-General may, at any time, appoint a Judicial Conduct Panel to inquire into, and report on, any matter or matters concerning the conduct of a Judge that have been the subject of a recommendation by the Commissioner under section 18
2: Before appointing a Panel, the Attorney-General must consult the Chief Justice about the proposed membership of the Panel, but the Attorney-General need not consult the Chief Justice about whether a Panel should be appointed.
3: However, if any matter to be inquired into and reported on concerns the conduct of the Chief Justice, subsection (2) applies as if the references in that subsection to the Chief Justice were references to the next most senior available Judge of the Supreme Court. Judicial Officers Act 1986 s 22 (NSW)
22: Membership of Panel
1: A Judicial Conduct Panel consists of the following persons appointed by the Attorney-General:
a: 2 members, being—
i: Judges; or
ii: a Judge and a retired Judge; or
iii: a member who is a Judge or a retired Judge, and a member who is a barrister or solicitor who has held a practising certificate as such for not less than 7 years; and
b: a lay member (not being a Judge, a retired Judge, or a barrister or solicitor).
2: The Panel is chaired by—
a: the member who is a retired Judge; or
b: if there is no retired Judge on the Panel, the member who is the senior Judge (if there are 2 Judges on the Panel) or the member who is a Judge (if there is only 1 Judge on the Panel).
3: The appointment of a Judge as a member of a Panel or service by a Judge as a member of a Panel does not affect his or her tenure of judicial office, rank, title, status, precedence, salary, annual or other allowances, or other rights or privileges as a Judge (including matters relating to superannuation), and, for all purposes, service by a Judge as a member of the Panel must be taken to be service as a Judge. Judicial Officers Act 1986 s 22 (NSW)
23: Panel must be dissolved if member unable to continue
If a member of a Judicial Conduct Panel is for any reason unable to continue as a member,—
a: the chairperson must dissolve the Panel and notify the Attorney-General of the dissolution; and
b: the Attorney-General must, under section 21(1)
24: Functions of Panel
1: A Judicial Conduct Panel must inquire into, and report on, the matter or matters of judicial conduct referred to it by the Attorney-General on the recommendation of the Commissioner.
2: The Panel must conduct a hearing into the matter or matters referred to it by the Attorney-General.
3: The Panel may also inquire into, and report on, any other matters concerning the conduct of the Judge that arise in the course of its dealing with the referral from the Attorney-General.
4: The Panel must give the Attorney-General a report in accordance with section 32 Judicial Officers Act 1986 ss 14, 31 (NSW)
25: Other provisions relating to administration and meetings of Panels
Part 2
26: Power of Panel to conduct hearings and inquiries
1: For the purpose of performing its functions and duties, a Judicial Conduct Panel has and may exercise the same powers as are conferred on Commissions of Inquiry by sections 4 4B to 8
2: Sections 4 4B to 9
3: The Panel must act in accordance with the principles of natural justice. Judicial Officers Act 1986 s 23 (NSW)
27: Representation at hearing
1: The Judge who is the subject of an inquiry by a Judicial Conduct Panel is entitled to appear and be heard at the hearing and to be represented by counsel.
2: The Judge's reasonable costs of representation in respect of the inquiry must be met by the office of the Commissioner.
3: The special counsel appointed under section 28
4: With the consent of the Panel, any other person may appear at the hearing and may be represented by counsel. Judicial Officers Act 1986 s 24 (NSW)
28: Special counsel
1: The Attorney-General must appoint and instruct a person to act as special counsel in an inquiry by a Judicial Conduct Panel.
2: At the hearing, the special counsel must present the allegations about the conduct of the Judge concerned, and may make submissions on questions of procedure or applicable law that are raised during the proceedings.
3: The special counsel must perform his or her duties impartially and in accordance with the public interest.
29: Hearing to be in public
1: Every hearing of a Judicial Conduct Panel must be held in public.
2: Despite subsection (1),—
a: if the Panel is of the opinion that it is proper to do so, having regard to the interest of any person (including, without limitation, the privacy of the complainant) and to the public interest, the Panel may order that a hearing or part of a hearing be held in private:
b: the Panel may, in any case, deliberate in private as to its recommendation or as to any question arising in the course of a hearing. Judicial Officers Act 1986 s 24 (NSW)
30: Restrictions on publication
1: If a Judicial Conduct Panel is of the opinion that it is proper to do so, having regard to the interest of any person (including, without limitation, the privacy of the complainant) and to the public interest, the Panel may make any 1 or more of the following orders:
a: an order prohibiting the publication of any report or account of any part of the proceedings before the Panel, whether held in public or in private:
b: an order prohibiting the publication of the whole or any part of any books, papers, or documents produced at any hearing:
c: an order prohibiting the publication of the name or any particulars of the affairs of the Judge concerned or any other person.
2: An order made under subsection (1) continues in force—
a: until the time specified in the order; or
b: if no time is specified in the order, until revoked under subsection (3) or section 31
3: Any person may, at any time, apply to a Panel for an order revoking, in whole or in part, an order made by it under subsection (1), and the Panel may grant or refuse the application as the Panel thinks fit.
4: If a person is unable to apply to the Panel for an order under subsection (3) because the Panel has ceased to function, the person may apply to the Court of Appeal for an order revoking, in whole or in part, an order made by the Panel under subsection (1).
5: A person commits an offence if he or she acts in contravention of any order made under this section by a Panel.
6: A person who commits an offence against subsection (5) is liable on
a: in the case of an individual, to a fine not exceeding $3,000:
b: in the case of a body corporate, to a fine not exceeding $10,000. 1993 No 82 s 107 Section 30(6) amended 1 July 2013 section 413 Criminal Procedure Act 2011
31: Appeal to Court of Appeal
1: Any person may appeal to the Court of Appeal against—
a: any order made under section 29(2)﻿(a)
b: the refusal of a Panel to make any order under section 29(2)﻿(a)
c: any order made under section 30(1) or (3)
d: the refusal of a Panel to make any order under section 30(1) or (3)
2: An application made under section 30(4) section 30(1)
a: made as if it were an appeal against an order made under section 30(1)
b: treated as an appeal under subsection (1).
3: The appeal must be—
a: by way of rehearing; and
b: made within the time, in the form, and in the manner prescribed by rules of court made under section 148
4: For the purposes of the appeal, the Court of Appeal has all the powers of a Panel and may make any orders it thinks fit.
5: However, the court must not make an order revoking, in whole or in part, an order made under section 30(1) section 30(3) Section 31(3)﻿(b) amended 1 March 2017 section 183(b) Senior Courts Act 2016
32: Report by Panel
1: A Judicial Conduct Panel must provide a report to the Attorney-General at the conclusion of its inquiry.
2: The report must set out—
a: the Panel's findings of fact; and
b: the Panel's opinion as to whether consideration of removal of the Judge is justified; and
c: the reasons for the Panel's conclusion. Judicial Officers Act 1986 s 29 (NSW)
33: Attorney-General has discretion to initiate removal of Judge on receipt of report
1: If a Judicial Conduct Panel concludes that consideration of the removal of a Judge is justified, the Attorney-General must determine, at his or her absolute discretion, whether to take steps to initiate the removal of that Judge from office.
2: A Judge must not be removed from office unless a Judicial Conduct Panel has reported to the Attorney-General that it is of the opinion that consideration of the removal of the Judge is justified.
3: Subsection (2) is subject to section 34
34: Attorney-General's power to take steps independently of this Act if Judge convicted of serious offence
1: This section applies if a Judge is convicted of a criminal offence punishable by imprisonment for 2 or more years.
2: If this section applies,—
a: the Attorney-General may, but is not required to, refer the matter to the Commissioner under section 12(2)
b: the Attorney-General may take steps independently of this Act to initiate the removal of the Judge from office.
3: If this section applies and the Attorney-General takes steps independently of this Act to initiate the removal of the Judge from office, the provisions of sections 7 to 33
4: The Commissioner and a Judicial Conduct Panel have jurisdiction under this Act in relation to a matter to which this section applies only if the Attorney-General refers the matter to the Commissioner under section 12(2)
35: Official Information Act 1982 amended
Amendment(s) incorporated in the Act(s) Savings provision Heading added 23 March 2010 section 14 Judicial Conduct Commissioner and Judicial Conduct Panel (Deputy Commissioner and Disposal of Complaints) Amendment Act 2010
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 Section 36 added 23 March 2010 section 14 Judicial Conduct Commissioner and Judicial Conduct Panel (Deputy Commissioner and Disposal of Complaints) Amendment Act 2010