South Australian Current Acts South Australian Current Acts93AA—Manner of dealing with complaints of sexual harassment by
judicial officers and members of Parliament
(1) If a complaint
alleging that a judicial officer or a member of Parliament has acted in
contravention of section 87 is lodged with the Commissioner, the
following provisions apply:
(a) the
Commissioner must refer the complaint to the appropriate authority;
(b) if
the appropriate authority is of the opinion that dealing with the complaint
under this Act could impinge on judicial independence or parliamentary
privilege, as the case may be, the appropriate authority will investigate and
may deal with the matter in such manner as the appropriate authority thinks
fit;
(c) on
the appropriate authority giving the Commissioner written notice that a
complaint is to be dealt with under paragraph (b)—
(i)
no further action can be taken under any other provision
of this Act on the complaint; and
(ii)
the Commissioner must give the complainant and the
respondent written notice that the complaint will be dealt with by the
appropriate authority;
(d) on
the appropriate authority giving the Commissioner written notice that a
complaint will not be dealt with under paragraph (b), the Commissioner
may proceed to deal with the complaint under this Act;
(e) a
notice must be given under paragraph (c) or (d) by the
appropriate authority no later than one month after the referral of a
complaint to the appropriate authority;
(f) the
Commissioner may at the request of the appropriate authority—
(i)
assist the authority in investigating a complaint that is
to be dealt with under paragraph (b); or
(ii)
attempt to resolve the subject matter of such a complaint
by conciliation (and for that purpose the Commissioner has the same powers as
are conferred on the Commissioner by section 95 in relation to the
conduct of conciliation proceedings where a complaint is dealt with under this
Act);
(g) if
the Commissioner is to act under paragraph (f), the appropriate authority
must give the complainant and the respondent written notice that the
Commissioner is to so act;
(h) if
the Commissioner attempts to resolve the subject matter of a complaint by
conciliation but is not successful in that attempt, the Commissioner may make
recommendations to the appropriate authority regarding resolution of the
matter;
(i)
if, after investigating a complaint under
paragraph (b), the appropriate authority considers that the complaint can
be dealt with under this Act without impinging on judicial independence or
parliamentary privilege (as the case may be), the appropriate authority must
remit the complaint to the Commissioner, and, in that case, the Commissioner
may proceed to deal with the complaint under this Act;
(j) if a
complaint is remitted to the Commissioner under paragraph (i), the
Commissioner must give the complainant and respondent written notice that the
complaint is to be dealt with by the Commissioner;
(k) the
appropriate authority must give the complainant and the Commissioner written
notice of the manner in which the appropriate authority has dealt with a
complaint under paragraph (b).
(2) For the purposes
of investigating a complaint that is to be dealt with by the
appropriate authority under this section, the authority has the same
investigative powers as are conferred on the Commissioner by section 94
in relation to the investigation of a complaint by the Commissioner.
(4) No personal
liability attaches to the appropriate authority for an act or omission in good
faith and in the exercise, or purported exercise, or the discharge, or
purported discharge, of powers or duties under this section.
(5) A liability that
would, but for subsection (4), lie against the appropriate authority lies
instead against the Crown.
(8) In this
section—
"appropriate authority" means—
(a) in
relation to a complaint against a judicial officer—
(i)
the Chief Justice; or
(ii)
if the Chief Justice is the respondent or considers it
inappropriate that he or she should deal with the matter—the most senior
puisne judge of the Supreme Court who is not the respondent, is available to
deal with the matter and does not consider it inappropriate that he or she
should deal with the matter;
(b) in
relation to a complaint against a member of the House of Assembly—
(i)
the Speaker of the House of Assembly; or
(ii)
if the Speaker is absent or unable for the time being to
perform the duties of office, or is the respondent or considers it
inappropriate that he or she should deal with the matter—the Deputy
Speaker of the House of Assembly; or
(iii)
if the Deputy Speaker is absent or unable for the time
being to perform the duties of office, or is the respondent or considers it
inappropriate that he or she should deal with the matter—a member of the
House of Assembly who is not the respondent in the matter and who is appointed
by the House of Assembly to deal with the complaint;
(c) in
relation to a complaint against a member of the Legislative Council—
(i)
the President of the Legislative Council; or
(ii)
if the President is absent or unable for the time being
to perform the duties of office, or is the respondent or considers it
inappropriate that he or she should deal with the matter—the member of
the Legislative Council for the time being appointed by the Legislative
Council to deal with such a complaint; or
(iii)
if that member is absent or unable for the time being to
perform the duties of office, or is the respondent or considers it
inappropriate that he or she should deal with the matter—a member of the
Legislative Council who is not the respondent and who is appointed by the
Legislative Council to deal with the complaint.