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This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
Courts Legislation (Judicial Conduct) Act 2005
Act No.
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 2
1. Purpose 2
2. Commencement 2
PART 2--AMENDMENT OF CONSTITUTION ACT 1975 3
3. Entrenchment of new Part IIIAA 3
4. New Part IIIAA inserted 3
PART IIIAA--THE JUDICIARY 3
87AAA. Definitions 3
87AAB. Removal from judicial office 4
87AAC. Judicial panel 5
87AAD. Appointment of investigating committee 5
87AAE. Role of investigating committee 6
87AAF. Powers of investigating committee 6
87AAG. Procedure and evidence at an investigation 7
87AAH. Report of investigating committee 7
87AAI. Retirement 8
87AAJ. Abolition of judicial office 8
5. Amendments consequential on new Part IIIAA 9
PART 3--AMENDMENTS OF OTHER ACTS CONSEQUENTIAL
ON NEW PART IIIAA OF CONSTITUTION ACT 1975 10
6. Amendment of Supreme Court Act 1986 10
7. Amendment of County Court Act 1958 10
8. Amendment of Magistrates' Court Act 1989 11
PART 4--AMENDMENT OF VICTORIAN CIVIL AND
ADMINISTRATIVE TRIBUNAL ACT 1998 12
9. Removal of non-judicial members from office 12
ENDNOTES 13
i
551261B.A1-4/5/2005 BILL LA AS SENT 4/5/2005
PARLIAMENT OF VICTORIA
Initiated in Assembly 22 February 2005
As amended by Assembly 4 May 2005
A BILL
to amend the Constitution Act 1975 to make fresh provision with
respect to the grounds for the removal from office of judicial office
holders, provide for the appointment of an investigating committee
and give an entitlement to re-appointment to a judicial office to the
holder of an abolished judicial office, to amend the Supreme Court
Act 1986, the County Court Act 1958, the Magistrates' Court Act
1989 and the Victorian Civil and Administrative Tribunal Act
1998 and for other purposes.
Courts Legislation (Judicial Conduct)
Act 2005
The Parliament of Victoria enacts as follows:
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551261B.A1-4/5/2005 BILL LA AS SENT 4/5/2005
Courts Legislation (Judicial Conduct) Act 2005
Act No.
Part 1--Preliminary
s. 1
PART 1--PRELIMINARY
1. Purpose
The main purpose of this Act is to amend the
Constitution Act 1975--
(a) to make fresh provision with respect to the
5
grounds for the removal from office of
judicial office holders consistent with
section 72 of the Commonwealth of
Australia Constitution Act;
(b) to provide for the appointment of an
10
investigating committee to consider whether
facts exist that could amount to proved
misbehaviour or incapacity such as to
warrant the removal from office of the holder
of a judicial office;
15
(c) to give an entitlement to re-appointment to a
judicial office of equivalent or higher status
to the holder of an abolished judicial office.
2. Commencement
(1) This Part comes into operation on the day after the
20
day on which this Act receives the Royal Assent.
(2) Subject to sub-section (3), the remaining
provisions of this Act come into operation on a
day to be proclaimed.
(3) If the provisions referred to in sub-section (2) do
25
not come into operation before 1 June 2006, they
come into operation on that day.
__________________
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551261B.A1-4/5/2005 BILL LA AS SENT 4/5/2005
Courts Legislation (Judicial Conduct) Act 2005
Act No.
Part 2--Amendment of Constitution Act 1975
s. 3
See:
PART 2--AMENDMENT OF CONSTITUTION ACT 1975
Act No.
8750.
3. Entrenchment of new Part IIIAA Reprint No. 16
as at
(1) After section 18(2)(fa) of the Constitution Act 8 April 2003
and
1975 insert-- amending
Act Nos
"(fb) Part IIIAA; or".
5 2/2003,
37/2003,
(2) In section 18(2)(g) of the Constitution Act 1975, 39/2003,
66/2003,
for "(fa)" substitute "(fb)". 110/2003,
38/2004,
4. New Part IIIAA inserted 39/2004 and
73/2004.
After Part III of the Constitution Act 1975 LawToday:
insert-- www.dms.
10
dpc.vic.
gov.au
'PART IIIAA--THE JUDICIARY
87AAA. Definitions
In this Part--
"investigating committee" means an
investigating committee appointed
15
under section 87AAD;
"judicial office" means the office of any of
the following--
(a) Judge of the Supreme Court;
(b) Master of the Supreme Court;
20
(c) judge of the County Court;
(d) master of the County Court;
(e) magistrate;
"panel" means panel established under
section 87AAC;
25
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Courts Legislation (Judicial Conduct) Act 2005
Act No.
Part 2--Amendment of Constitution Act 1975
s. 4
"qualifying office" means the office of
judge of any of the following courts--
(a) Federal Court of Australia;
(b) Family Court of Australia;
(c) Family Court of Western
5
Australia;
(d) Supreme Court of a State other
than Victoria;
(e) Supreme Court of the Australian
Capital Territory or the Northern
10
Territory;
"special majority" has the same meaning as
in section 18.
87AAB. Removal from judicial office
(1) The Governor in Council may remove the
15
holder of a judicial office from that office on
the presentation to the Governor of an
address from both Houses of the Parliament
agreed to by a special majority in the same
session praying for that removal on the
20
ground of proved misbehaviour or
incapacity.
(2) A resolution of a House of the Parliament or
of both Houses of the Parliament praying for
the removal from office of the holder of a
25
judicial office is void if an investigating
committee appointed under section 87AAD
has not concluded that facts exist that could
amount to proved misbehaviour or incapacity
such as to warrant the removal of that office
30
holder from office.
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Courts Legislation (Judicial Conduct) Act 2005
Act No.
Part 2--Amendment of Constitution Act 1975
s. 4
(3) This section extends to term appointments or
acting appointments to a judicial office but
does not prevent the holder of the office
ceasing to hold office on the expiry of the
term or the period for which he or she is
5
appointed to act.
(4) Except as provided by this Part, no holder of
a judicial office can be removed from that
office.
87AAC. Judicial panel
10
(1) A panel of 7 persons is established for the
purposes of this Part.
(2) Members of the panel are appointed by the
Attorney-General for the term specified in
their instrument of appointment.
15
(3) A person is only eligible for appointment as
a panel member if he or she has held a
qualifying office but no longer holds one.
(4) The office of a panel member becomes
vacant if he or she is appointed to a
20
qualifying office.
(5) A panel member may resign his or her office
as panel member by delivering to the
Attorney-General a signed letter of
resignation.
25
87AAD. Appointment of investigating committee
(1) An investigating committee is to be
appointed if the Attorney-General is satisfied
that there are reasonable grounds for the
carrying out of an investigation into whether
30
facts exist that could amount to proved
misbehaviour or incapacity on the part of the
holder of a judicial office such as to warrant
the removal of that office holder from office.
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Courts Legislation (Judicial Conduct) Act 2005
Act No.
Part 2--Amendment of Constitution Act 1975
s. 4
(2) An investigating committee consists of
3 members of the panel appointed by the
Attorney-General on the recommendation of
the most senior member for the time being of
the panel.
5
(3) The Attorney-General, on the
recommendation of the most senior member
for the time being of the panel, must appoint
one of the members of the investigating
committee as chairperson of the committee.
10
(4) For the purposes of this section panel
members have seniority in relation to each
other according to the dates of their first
appointment to a qualifying office.
87AAE. Role of investigating committee
15
The role of an investigating committee is to
investigate the matter relating to the holder
of a judicial office referred to it and report to
the Attorney-General, within the period
specified by him or her, its conclusion as to
20
whether facts exist that could amount to
proved misbehaviour or incapacity such as to
warrant the removal of that office holder
from office.
87AAF. Powers of investigating committee
25
(1) An investigating committee has, and may
exercise, the powers conferred by
sections 17, 18, 19, 19A, 19B, 19C, 19D,
19E, 20, 20A, 21 and 21A of the Evidence
Act 1958 as if the committee were a body of
30
persons to whom the Governor in Council
has issued a commission and the chairperson
of the committee were the president or
chairperson of the commission.
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Courts Legislation (Judicial Conduct) Act 2005
Act No.
Part 2--Amendment of Constitution Act 1975
s. 4
(2) A person is not excused from answering any
question or producing any document or thing
when required by an investigating committee
on the ground that the answering of the
question or the production of the document
5
or thing is prohibited by or under any Act.
(3) The answering of a question or the
production of a document or thing, when
required by an investigating committee, does
not constitute a breach of a provision made
10
by or under any Act prohibiting the
disclosure of information of a kind contained
in that answer, document or thing.
87AAG. Procedure and evidence at an
investigation
15
(1) If the investigating committee agrees, a
person or body may be legally represented at
the investigation or represented by an agent
of any other kind.
(2) The investigating committee is not bound by
20
the rules of evidence and may be informed
on any matter in issue at the inquiry in any
manner that it considers appropriate.
(3) The investigating committee may give
directions as to the procedure to be followed
25
at or in connection with the investigation.
87AAH. Report of investigating committee
(1) The investigating committee must, within the
period required by the Attorney-General,
prepare a report on the conduct and findings,
30
and any conclusions, of the investigation and
submit the report to the Attorney-General.
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Courts Legislation (Judicial Conduct) Act 2005
Act No.
Part 2--Amendment of Constitution Act 1975
s. 4
(2) The report of the investigating committee
must state its conclusion as to whether facts
exist that could amount to proved
misbehaviour or incapacity such as to
warrant the removal of that office holder
5
from office.
(3) The Attorney-General may, if he or she
considers it appropriate to do so, cause a
copy of the report of the investigating
committee to be laid before each House of
10
Parliament.
87AAI. Retirement
This Part does not prevent the fixing by or
under an Act of an age at which all holders
of a judicial office, or all holders of a judicial
15
office in a court, are required to retire or the
alteration from time to time of an age so
fixed.
87AAJ. Abolition of judicial office
(1) This Part does not prevent the abolition of a
20
judicial office by or under an Act.
(2) The person who held an abolished judicial
office is entitled (without loss of
remuneration) to be appointed to and to hold
another judicial office in the same court or in
25
a court of equivalent or higher status, unless
already the holder of such an office.
(3) That right remains operative for the period
during which the person was entitled to hold
the abolished office, subject to removal as
30
provided by this Part. The right lapses if the
person declines appointment to the other
office or resigns from it.
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551261B.A1-4/5/2005 BILL LA AS SENT 4/5/2005
Courts Legislation (Judicial Conduct) Act 2005
Act No.
Part 2--Amendment of Constitution Act 1975
s. 5
(4) This section applies whether the judicial
office was--
(a) abolished directly; or
(b) abolished indirectly by the abolition of
a court or part of a court.'.
5
5. Amendments consequential on new Part IIIAA
(1) In section 77(1) of the Constitution Act 1975--
(a) omit "during their good behaviour";
(b) omit "but the Governor may remove any
such Judge upon the address of the Council
10
and the Assembly".
(2) Before section 77(4)(a) of the Constitution Act
1975 insert--
"(aaa) on the judge being removed from office by
the Governor in Council in accordance with
15
Part IIIAA; or
(aa) on the abolition of the office of the judge by
under an Act; or".
__________________
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551261B.A1-4/5/2005 BILL LA AS SENT 4/5/2005
Courts Legislation (Judicial Conduct) Act 2005
Act No.
Part 3--Amendments of other Acts consequential on new Part IIIAA of
s. 6
Constitution Act 1975
PART 3--AMENDMENTS OF OTHER ACTS
CONSEQUENTIAL ON NEW PART IIIAA OF
CONSTITUTION ACT 1975
6. Amendment of Supreme Court Act 1986
(1) In section 104(3A)(b) of the Supreme Court Act
5
1986, for "on the address of both Houses of
Parliament" substitute "in Council in accordance
with Part IIIAA of the Constitution Act 1975".
(2) After section 104(3A)(b) of the Supreme Court
Act 1958 insert--
10
"(ba) if his or her office is abolished by or under
an Act; or".
7. Amendment of County Court Act 1958
(1) Section 9 of the County Court Act 1958 is
repealed.
15
(2) Before section 14(1)(a) of the County Court Act
1958 insert--
"(aaa) on the judge being removed from office by
the Governor in Council in accordance with
Part IIIAA of the Constitution Act 1975; or
20
(aa) on the abolition of the office of the judge by
or under an Act; or".
(3) In section 17A(2)(b) of the County Court Act
1958, for "on the address of both Houses of
Parliament" substitute "in Council in accordance
25
with Part IIIAA of the Constitution Act 1975".
(4) After section 17A(2)(b) of the County Court Act
1958 insert--
"(ba) if his or her office is abolished; or".
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551261B.A1-4/5/2005 BILL LA AS SENT 4/5/2005
Courts Legislation (Judicial Conduct) Act 2005
Act No.
Part 3--Amendments of other Acts consequential on new Part IIIAA of
s. 8
Constitution Act 1975
8. Amendment of Magistrates' Court Act 1989
(1) In section 9(10) of the Magistrates' Court Act
1989, omit "or suspended" (where twice
occurring).
(2) Section 11 of the Magistrates' Court Act 1989 is
5
repealed.
(3) In section 12 of the Magistrates' Court Act
1989--
(a) omit "he or she";
(b) in paragraph (a), before "attains" insert
10
"he or she";
(c) for paragraph (b) substitute--
"(b) he or she is removed from office by the
Governor in Council in accordance
with Part IIIAA of the Constitution
15
Act 1975; or
(c) his or her office is abolished by or
under an Act.".
__________________
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551261B.A1-4/5/2005 BILL LA AS SENT 4/5/2005
Courts Legislation (Judicial Conduct) Act 2005
Act No.
Part 4--Amendment of Victorian Civil and Administrative Tribunal Act
s. 9
1998
PART 4--AMENDMENT OF VICTORIAN CIVIL AND
ADMINISTRATIVE TRIBUNAL ACT 1998
9. Removal of non-judicial members from office
For section 23(5) of the Victorian Civil and
Administrative Tribunal Act 1998 substitute--
5
"(5) The person who conducted the investigation
and the Minister may only recommend that a
member be removed on the ground of proved
misbehaviour or incapacity.".
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Courts Legislation (Judicial Conduct) Act 2005
Act No.
Endnotes
ENDNOTES
By Authority. Government Printer for the State of Victoria.
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551261B.A1-4/5/2005 BILL LA AS SENT 4/5/2005
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