Judicial Officers Amendment Bill 2006

Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.

Overview of Bill

The objects of this Bill are:

(a) to amend the Judicial Officers Act 1986 so as:

        (i) to make further provision with respect to the handling of complaints
against judicial officers and the investigation of judicial officers who
have suspected impairments, and
        (ii) to clarify the powers of the Judicial Commission to enter into certain
kinds of contractual arrangements, and
        (iii) to include persons who are acting in judicial office as judicial officers
for the purposes of that Act, and
        (iv) to make other minor, consequential and ancillary amendments, and

(b) to amend the Judges’ Pensions Act 1953 so as to ensure that any leave without
pay that is taken by a judge is not counted towards the judge’s period of service
for the purpose of calculating the judge’s pension entitlements.

Outline of provisions

Clause 1 sets out the name (also called the short title) of the proposed Act.

Clause 2 provides for the commencement of the proposed Act on a day or days to be
appointed by proclamation.

Clause 3 is a formal provision that gives effect to the amendments to the Judicial
Officers Act 1986 set out in Schedules 1 and 2.

Clause 4 amends the Judges’ Pensions Act 1953 to give effect to the object referred
to in paragraph (b) of the Overview above.

Clause 5 provides for the repeal of the proposed Act after all the amendments made
by the proposed Act have commenced. Once the amendments have commenced the
proposed Act will be spent. Section 30 of the Interpretation Act 1987 provides that
the repeal of an amending Act does not affect the amendments made by that Act.

Schedule 1 Principal amendments
Suspected impairment of judicial officers
Schedule 1 [18] inserts a new Part 6A. The proposed Part contains the following
provisions:

(a) a provision defining certain expressions for the purposes of the Part (proposed
section 39A),

(b) a provision empowering the relevant head of jurisdiction to request the
Judicial Commission to investigate a judicial officer’s suspected impairment
(proposed section 39B),

(c) a provision enabling the Judicial Commission to conduct a preliminary
examination of a judicial officer’s suspected impairment (proposed
section 39C),

(d) a provision enabling the Judicial Commission to require a judicial officer to
undergo a medical or psychological examination (proposed section 39D),

(e) a provision requiring the Judicial Commission, if it is of the opinion that an
impairment exists that may affect a judicial officer’s performance of judicial
or official duties, to refer the question of the judicial officer’s suspected
impairment to the Commission’s Conduct Division (the Conduct Division) or
to the relevant head of jurisdiction or, if it is not of that opinion, to summarily
dismiss the request (proposed section 39E),

(f) a provision requiring the Conduct Division to examine any matter that is
referred to it under proposed section 39E, and giving it the same functions in
relation to its examination of the matter as it has in relation to the examination
of a complaint (proposed section 39F),

(g) a provision requiring the Conduct Division, if it is of the opinion that a judicial
officer is physically or mentally unfit to exercise efficiently the functions of a
judicial office, to present a report to the Governor as to its conclusions or, if it
is not of that opinion, to send a report as to its conclusions to the relevant head
of jurisdiction (proposed section 39G).

Schedule 1 [7] substitutes section 14 as a consequence of the enactment of the
proposed Part.

Referral of complaints back to head of jurisdiction
Schedule 1 [12] substitutes section 28. The proposed section enables the Conduct
Division not only to form an opinion that a substantiated complaint could justify
parliamentary consideration of the judicial officer’s removal from judicial office, as
is presently the case, but also to form an opinion that, although substantiated, the
complaint does not justify such consideration and may therefore be referred to the
relevant head of jurisdiction.

Action by heads of jurisdiction following investigation of complaints
and formal requests
Schedule 1 [19] inserts a new section 43AA. The proposed section applies if a
reference or report contains recommendations from the Judicial Commission or the
Conduct Division as to how a complaint against a judicial officer, or as to how a
judicial officer’s impairment, should be dealt with. Under the proposed section, the
head of jurisdiction will be empowered to give effect to any such recommendation
by counselling the judicial officer or by taking other appropriate steps in relation to
the administration of the court or courts for which he or she is responsible.

Judicial Commission guidelines
Schedule 1 [2] and [3] amend section 10 (1) so as to enable guidelines under section
10 to be formulated not only for the Conduct Division, as is currently the case, but
also for the Judicial Commission itself.

Schedule 1 [4] omits section 10 (2) and (3) and replaces those subsections with a new
subsection (2) that extends the matters for which guidelines for the Conduct Division
may be made.

Hearings before the Conduct Division
Schedule 1 [11] amends section 24 so as to give the Conduct Division unfettered
discretion as to whether a hearing before it is to be held in public or in private.

Consideration of matters not raised by complaint
Schedule 1 [15] and [16] amend section 31 so as to allow not only the Conduct
Division, as is presently the case, but also the Judicial Commission to treat a
complaint as extending to other matters arising in the course of the complaint’s being
dealt with.

Substantiation of complaints
Schedule 1 [8] and [9] amend sections 20 and 21 to make it clear that the Judicial
Commission may dismiss a complaint, or refer a complaint to the relevant head of
jurisdiction and not to the Conduct Division, even if the complaint appears to be
substantiated.

Psychological examinations
Schedule 1 [17] amends section 34 so as to enable the Conduct Division, when
investigating a complaint against a judicial officer, to request the judicial officer to
undergo a psychological examination. Failure to comply with such a request will
allow the Conduct Division to form an opinion that parliamentary consideration of
the removal of the judicial officer from office is justified, as is the case in relation to
a judicial officer’s failure to undergo a medical examination.

Reports to Minister
Schedule 1 [10] inserts a new section 21A. The proposed section requires the
Minister to be notified of the Judicial Commission’s decision with respect to any
matter that the Minister has referred to it under section 16.

Reports to the Governor
Schedule 1 [13] and [14] amend section 29 so as to require copies of a report on a
complaint against a judicial officer that is presented to the Governor to be furnished
both to the Minister and to the complainant.

Annual reports
Schedule 1 [20] amends section 49 so as to clarify the annual reporting requirements
in relation to complaints that are summarily dismissed. The new requirement makes
it clear that the report must state how many complaints have been dismissed in
accordance with each of the criteria for dismissal set out in section 20 (1).

Contractual arrangements
Schedule 1 [5] amends section 11 so as to enable the Judicial Commission to enter
into and carry out certain contractual arrangements, including arrangements for the
provision by the Commission of property and services that comprise or make use of
information technology, expertise or other things developed by the Commission in
the exercise of its functions.

Schedule 1 [6] further amends section 11 so as to enable the Judicial Commission to
exercise its liaison and contractual functions both within New South Wales and
elsewhere.

Definition of “judicial officer”
Schedule 1 [1] amends section 3 so as to ensure that the Judicial Officers Act 1986
extends to acting appointments to a judicial office, whether made with or without a
specific term.

Savings and transitional provisions
Schedule 1 [21] amends clause 1 of Schedule 6 so as to enable regulations of a
savings or transitional nature to be made in connection with the enactment of the
proposed Act.

Schedule 1 [22] inserts a new Part 4 into Schedule 6. The proposed Part contains a
clause that applies the proposed Part 6A (to be inserted by Schedule 1 [18]) to
existing impairments.

Schedule 2 Amendments relating to classification of
complaints
Complaints are currently required to be classified as “minor” or “serious”, and the
procedure for dealing with complaints varies according to their classification.

Schedule 2 repeals sections 19, 27 and 30, and amends sections 25, 29, 34 and 49,
so as to abolish the requirement for complaints to be classified and omit the
variations in procedure.

Note: If this Bill is not modified, these Explanatory Notes would reflect the Bill as passed in the House. If the Bill has been amended by Committee, these Explanatory Notes may not necessarily reflect the Bill as passed.

 

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