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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Judicial Officers Amendment Bill 2006
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Judicial Officers Act 1986 No 100 2
4 Amendment of Judges' Pensions Act 1953 No 41 2
5 Repeal of Act 2
Schedule 1 Principal amendments 3
Schedule 2 Amendments relating to classification of complaints 10
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE ASSEMBLY,
has finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of
NEW SOUTH WALES.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2006
New South Wales
Judicial Officers Amendment Bill 2006
Act No , 2006
An Act to amend the Judicial Officers Act 1986 so as to make further provision with
respect to the handling of complaints against judicial officers and the investigation
of judicial officers who are suspected to be suffering from impairment; to amend the
Judges' Pensions Act 1953 so as to exclude leave without pay from a judicial
officer's pensionable service; and for other purposes.
I have examined this Bill, and find it to correspond in all respects with the Bill
as finally passed by both Houses.
Chairman of Committees of the Legislative Assembly.
Clause 1 Judicial Officers Amendment Bill 2006
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Judicial Officers Amendment Act 2006.
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
3 Amendment of Judicial Officers Act 1986 No 100
The Judicial Officers Act 1986 is amended as set out in Schedules 1
and 2.
4 Amendment of Judges' Pensions Act 1953 No 41
The Judges' Pensions Act 1953 is amended by inserting after section
2 (1) the following subsection:
(1A) For the purposes of this Act, any reference to the period for
which a person has served as a judge (however expressed)
is taken to exclude any time for which the person has been
on leave without pay, whether before or after the
commencement of this subsection.
5 Repeal of Act
(1) This Act is repealed on the day following the day on which all of the
provisions of this Act have commenced.
(2) The repeal of this Act does not, because of the operation of section 30
of the Interpretation Act 1987, affect any amendment made by this Act.
Page 2
Judicial Officers Amendment Bill 2006
Principal amendments Schedule 1
Schedule 1 Principal amendments
(Section 3)
[1] Section 3 Definitions
Insert after section 3 (3):
(3A) This Act extends to acting appointments to a judicial office,
whether made with or without a specific term.
[2] Section 10 Guidelines
Insert "both it and" after "assist" in section 10 (1) (a).
[3] Section 10 (1) (a)
Omit "its". Insert instead "their".
[4] Section 10 (2)
Omit section 10 (2) and (3). Insert instead:
(2) The guidelines for the Conduct Division may include provisions
with respect to any one or more of the following matters:
(a) the manner in which the Conduct Division should conduct
its examination of complaints generally,
(b) the manner in which the Conduct Division should conduct
its hearings in connection with complaints,
(c) the criteria that the Conduct Division should consider
when determining whether a hearing should be held in
public or in private,
(d) the criteria that the Conduct Division should consider
when exercising its power to consent to legal
representation for persons appearing at its hearings.
[5] Section 11 Other functions of the Commission
Insert at the end of section 11 (b):
, and
(c) to enter into and carry out contractual arrangements
(including commercial arrangements) for the supply by the
Commission to others of property or services that comprise
or make use of information technology, expertise or other
things developed by the Commission in the exercise of its
functions.
Page 3
Judicial Officers Amendment Bill 2006
Schedule 1 Principal amendments
[6] Section 11 (2)
Insert at the end of section 11:
(2) The Commission's functions under subsection (1) may be
exercised both within New South Wales and elsewhere.
[7] Section 14
Omit the section. Insert instead:
14 Functions of the Conduct Division
The functions of the Conduct Division are to examine and deal
with complaints referred to it under Part 6 and formal requests
referred to it under Part 6A.
[8] Section 20 Summary dismissal of complaints
Insert ", whether or not it appears to be substantiated" after "opinion that" in
section 20 (1).
[9] Section 21 Reference of complaint to Conduct Division or head of
jurisdiction
Omit section 21 (2). Insert instead:
(2) The Commission may however refer a complaint to the relevant
head of jurisdiction if the Commission thinks that, although the
complaint appears to be wholly or partly substantiated, it does not
justify the attention of the Conduct Division.
(3) A reference under subsection (2) may include recommendations
as to what steps might be taken to deal with the complaint.
[10] Section 21A
Insert after section 21:
21A Reports to Minister
After dealing with a matter referred to it under section 16, the
Commission must notify the Minister as to whether the matter
has been summarily dismissed under section 20 (1), referred to
the Conduct Division under section 21 (1) or referred to the
relevant head of jurisdiction under section 21 (2).
[11] Section 24 Hearings by Conduct Division
Omit section 24 (2)(4). Insert instead:
(2) A hearing may be held in public or in private, as the Conduct
Division may determine.
Page 4
Judicial Officers Amendment Bill 2006
Principal amendments Schedule 1
[12] Section 28
Omit the section. Insert instead:
28 Substantiation of complaint
(1) If the Conduct Division decides that a complaint is wholly or
partly substantiated:
(a) it may form an opinion that the matter could justify
parliamentary consideration of the removal of the judicial
officer complained about from office, or
(b) it may form an opinion that the matter does not justify such
consideration and should therefore be referred back to the
relevant head of jurisdiction.
(2) If it forms an opinion referred to in subsection (1) (b), the
Conduct Division must send a report to the relevant head of
jurisdiction setting out the Division's conclusions.
(3) A report under subsection (2) may include recommendations as
to what steps might be taken to deal with the complaint.
[13] Section 29 Reports to Governor
Insert before section 29 (3):
(2A) A copy of the report must be furnished forthwith to the Minister.
[14] Section 29 (6)
Insert "and, after it has been laid before each House of Parliament, to the
complainant" after "the Commission".
[15] Section 31 Extension or partial dismissal of complaint
Insert "Commission or" before "Conduct Division" wherever occurring.
[16] Section 31 (1)
Insert "Commission or" before "Division" where secondly occurring.
[17] Section 34 Medical or psychological examination
Insert "or psychological" after "medical" wherever occurring.
Page 5
Judicial Officers Amendment Bill 2006
Schedule 1 Principal amendments
[18] Part 6A
Insert after Part 6:
Part 6A Suspected impairment of judicial officers
39A Definitions
In this Part:
formal request means a request about a judicial officer that has
been made by the relevant head of jurisdiction under section 39B.
impairment includes any physical or mental impairment.
39B References by heads of jurisdiction
(1) If of the opinion that a judicial officer may have an impairment
that affects his or her performance of judicial or official duties,
the relevant head of jurisdiction may request the Commission to
investigate the matter.
(2) A request made under subsection (1) is not a complaint.
39C Preliminary examination
(1) The Commission must conduct a preliminary examination into
the subject-matter of a formal request.
(2) In conducting the preliminary examination, the Commission may
initiate such inquiries into the subject-matter of the request as it
thinks appropriate.
(3) The examination or inquiries must, as far as practicable, take
place in private.
39D Medical or psychological examination
(1) For the purpose of its preliminary examination in relation to a
formal request, the Commission may require the judicial officer
concerned to undergo such medical or psychological
examination as the Commission specifies.
(2) If the judicial officer refuses or fails to undergo the medical or
psychological examination, the Commission may deal with the
matter as if the judicial officer were the subject of a complaint.
39E Action following preliminary examination
(1) Following its preliminary examination in relation to a formal
request, the Commission:
Page 6
Judicial Officers Amendment Bill 2006
Principal amendments Schedule 1
(a) if of the opinion that, having regard to the results of a
medical or psychological examination, the judicial officer
may have an impairment that affects his or her
performance of judicial or official duties:
(i) may refer the matter to the Conduct Division, or
(ii) may refer the matter back to the relevant head of
jurisdiction,
together with a report that sets out the results of the
medical or psychological examination, or
(b) in any other case, must summarily dismiss the request.
(2) In any case, the Commission must cause notice of its action to be
given to the relevant head of jurisdiction.
(3) If a matter is referred back to the relevant head of jurisdiction
under subsection (1) (a) (ii), the reference may include
recommendations as to what steps might be taken to deal with
any impairment disclosed by the Commission's examination of
the matter.
39F Examination of matter referred
(1) The Conduct Division must conduct an examination of a matter
referred to it under section 39E.
(2) The Conduct Division has the same functions in relation to the
examination of a matter referred to it under this section as it has
in relation to the examination of a complaint.
39G Report as to Conduct Division's conclusions
(1) If the Conduct Division is of the opinion that the judicial officer
is physically or mentally unfit to exercise efficiently the functions
of a judicial office, the Conduct Division is to present a report to
the Governor setting out the Division's conclusions.
(2) Section 29 applies to a report under subsection (1) in the same
way as it applies to a report under section 29 (1).
(3) If the Conduct Division is not of the opinion that the judicial
officer is physically or mentally unfit to exercise efficiently the
functions of a judicial office, the Conduct Division is to send a
report to the relevant head of jurisdiction setting out the
Division's conclusions.
(4) A report under subsection (3) may include recommendations as
to what steps might be taken to deal with any impairment
disclosed by the Conduct Division's examination of the matter.
Page 7
Judicial Officers Amendment Bill 2006
Schedule 1 Principal amendments
[19] Section 43AA
Insert after section 43:
43AA Other action following complaint under Part 6 or formal request
under Part 6A
(1) This section applies if:
(a) a reference under section 21 (2), or a report under section
28 (2), contains any recommendations as to what steps
might be taken to deal with any complaint against a
judicial officer, or
(b) a reference under section 39E (1) (a) (ii), or a report under
section 39G (3), contains any recommendations as to what
steps might be taken to deal with any impairment disclosed
by the Commission's or Conduct Division's examination
of a judicial officer.
(2) For the purpose of giving effect to any such recommendation, the
relevant head of jurisdiction:
(a) may counsel the judicial officer, and
(b) may take such other steps as the relevant head of
jurisdiction considers appropriate in relation to the
administration of the court or courts for which he or she is
responsible.
[20] Section 49 Annual report
Omit section 49 (2) (b). Insert instead:
(b) in respect of the complaints summarily dismissed during
the year, how many were dismissed in accordance with
each of the criteria referred to in section 20 (1) (a)(h),
[21] Schedule 6 Savings and transitional provisions
Insert at the end of clause 1 (1):
Judicial Officers Amendment Act 2006, to the extent that it
amends this Act
Page 8
Judicial Officers Amendment Bill 2006
Principal amendments Schedule 1
[22] Schedule 6, Part 4
Insert after Part 3:
Part 4 Provisions consequent on enactment of
Judicial Officers Amendment Act 2006
4 Application of Part 6A
Part 6A, as inserted by the Judicial Officers Amendment Act
2006, extends to impairments arising before the commencement
of that Part.
Page 9
Judicial Officers Amendment Bill 2006
Schedule 2 Amendments relating to classification of complaints
Schedule 2 Amendments relating to classification of
complaints
(Section 3)
[1] Section 19 Action following preliminary examination
Omit the section.
[2] Section 25 Powers of Conduct Division concerning evidence
Omit "serious" from section 25 (1).
[3] Section 25 (4)
Omit the subsection.
[4] Section 27 Substantiation of minor complaint
Omit the section.
[5] Section 29 Reports to Governor
Omit section 29 (1) and (2). Insert instead:
(1) If the Conduct Division decides that a complaint is wholly or
partly substantiated and forms an opinion that the matter could
justify parliamentary consideration of the removal of the judicial
officer from office, it must present to the Governor a report
setting out the Division's findings of fact and that opinion.
[6] Section 29 (7)
Omit the subsection.
[7] Section 30 Classification of complaints
Omit the section.
[8] Section 34 Medical or psychological examination
Omit "serious" from section 34 (1).
Page 10
Judicial Officers Amendment Bill 2006
Amendments relating to classification of complaints Schedule 2
[9] Section 49 Annual report
Omit section 49 (2) (a) (iii) and (iv). Insert instead:
(iii) complaints disposed of during the year,
Page 11
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