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JUDICIAL COMMISSION OF VICTORIA BILL 2010

   Judicial Commission of Victoria Bill
                 2010

                       Introduction Print

            EXPLANATORY MEMORANDUM


                             Clause Notes

                    PART 1--PRELIMINARY
Clause 1   sets out the purposes of the Bill.

Clause 2   provides that the Bill will come into operation on a day or days
           to be proclaimed and that a provision of the Bill comes into
           operation on 1 January 2012, if not proclaimed earlier.

Clause 3   provides a number of definitions, including--
           acting coroner means--
           ·       in relation to persons appointed as a coroner prior to
                   the commencement of the Coroners Act 2008 on
                   1 November 2009, a coroner appointed under the
                   Coroners Act 1985 who is not a judge of the County
                   Court, a magistrate or an acting magistrate; or
           ·       in relation to persons appointed after 1 November 2009
                   to the Coroners Court, an acting coroner appointed
                   under section 94 of the Coroners Act 2008.
           Acting coroners are "judicial officers" for the purposes of the
           Bill and can therefore only be removed under Part IIIAA of the
           Constitution Act 1975.
           appointed member means a person appointed under
           clause 8(2)(b) as a member of the Board.
           Board means the Board of the Judicial Commission of Victoria.
           Commission means the Judicial Commission of Victoria
           established under clause 4.


561475                               1   BILL LA INTRODUCTION 1/9/2010

 


 

complaint means a complaint made by any person under clause 28. head of jurisdiction means-- · in relation to the Supreme Court, the Chief Justice; or · in relation to the County Court, the Chief Judge; or · in relation to the Magistrates' Court, the Chief Magistrate; or · in relation to the Children's Court, the President of the Children's Court; or · in relation to the Coroners Court, the State Coroner; or · in relation to VCAT, the President of VCAT. "Chief Justice", "Chief Judge", "Chief Magistrate", "State Coroner", "Supreme Court", "County Court", "Magistrates' Court", "Children's Court", "Coroners Court" and "VCAT" are currently defined in section 38 of the Interpretation of Legislation Act 1984. While the definition of "head of jurisdiction" is exhaustive, the specified judicial offices encompass both the named office holder and any individual who may be appointed to exercise the functions and jurisdictions of the named office holders. For example, section 79(1) of the Constitution Act 1975 currently provides that the Attorney-General may appoint an Acting Chief Justice during periods in which the Chief Justice is temporarily absent or unable to perform his or her duties. Section 79(2) of the Constitution Act 1975 provides that an Acting Chief Justice may exercise any of the powers of the Chief Justice. Where so empowered, the Acting Chief Justice is the "Chief Justice" for the purposes of the clause 3(1) definition of "head of jurisdiction". Divisions 1 and 3 of Part 4 permit a "head of jurisdiction" to make a Part 4 referral or health request regarding an officer appointed or assigned to the court or tribunal over which the head presides. The head of jurisdiction also receives notices from the Commission in specified situations. health request means a request under clause 39 made to the Commission by the Attorney-General or a head of jurisdiction. 2

 


 

investigating panel means an investigating panel established under clause 79 of the Bill. An investigating panel conducts investigations into judicial officers. Clause 3(1) defines "judicial officer". Under Part 5, an investigating panel investigates whether facts exist that could amount to proved misbehaviour or incapacity which could warrant the removal of the officer under Part IIIAA of the Constitution Act 1975. investigator means an individual appointed under clause 109. An investigator conducts investigations into judicial registrars and VCAT officers. Clause 3(1) separately defines "judicial registrar" and "VCAT officer". Under Part 6, an investigator investigates whether facts exist that could amount to proved misbehaviour or incapacity which could warrant the removal of a judicial registrar or VCAT officer by the Governor in Council on the advice of the Attorney-General. judicial officer means-- · a Judge of the Supreme Court; or · an Associate Judge of the Supreme Court; or · an acting Judge of the Supreme Court; or · a judge of the County Court; or · an associate judge of the County Court; or · an acting judge of the County Court; or · a magistrate of the Magistrates' Court; or · an acting magistrate of the Magistrates' Court; or · an acting coroner. The reference to a judge of a court includes the head of the court. A Judge of the Supreme Court includes a Judge of Appeal and the President of the Court of Appeal. The Bill distinguishes between magistrates and acting magistrates and between judges and acting judges. The Bill distinguishes between "judicial officers" and "judicial registrars and VCAT officers". 3

 


 

"Judicial officers" are potentially subject to parliamentary removal following an investigation conducted by an investigating panel under Part 5. judicial registrar means a judicial registrar of the Supreme Court, the County Court, the Magistrates' Court, the Children's Court or the Coroners Court. Judicial registrars are not "judicial officers" for the purposes of the Bill and are potentially subject to removal by the Governor in Council on the advice of the Attorney-General following an investigation by an investigator under Part 6. medical examination means a physical, psychological, psychiatric or other medical examination, and any medical test requested by a medical practitioner empowered under Division 3 of Part 4, Division 3 of Part 5 or Division 3 of Part 6. medical test includes diagnostic imaging and any test that requires the officer to provide blood, bodily fluids or human tissue. Diagnostic imaging would include computed tomography (a CT scan), magnetic resonance imaging (a MRI scan), x-rays and ultrasound. Medical tests may only be required under clauses 42(1)(b), 72(1)(b) and 103(1)(b) by a registered medical practitioner. official committee means a committee established by the Commission under clause 111. Clause 111 provides that the Commission may constitute an ad hoc or standing committee which may be delegated the Commission's functions pursuant to clause 7(2). Where a delegation is effected under clause 7(2), such powers may be exercised only in relation to complaints, Part 4 referrals, or health requests concerning judicial registrars or VCAT officers. Part 4 referral means a referral by the Attorney-General or a referral by a head of jurisdiction. referral by the Attorney-General means a referral under clause 30. referral by the head of jurisdiction means a referral under clause 29. "Head of jurisdiction" is separately defined. A referral is brought on the same grounds as a complaint. Clauses 41(2) and 42(3) provide that a health request made to the Commission may be treated as a Part 4 referral where an officer fails, without reasonable excuse, to comply with requests 4

 


 

to undergo a medical examination or produce relevant documents. registered medical practitioner means a person registered under the Health Practitioner Regulation National Law to practise in the medical profession (other than a student). "Health Practitioner Regulation National Law" is currently defined in section 38E of the Interpretation of Legislation Act 1984 to mean-- "(a) the Health Practitioner Regulation National Law-- (i) as in force from time to time, set out in the Schedule to the Health Practitioner Regulation National Law Act 2009 of Queensland; and (ii) as it applies as a law of Victoria, another State or a Territory (with or without modification); or (b) the law of another State or a Territory that substantially corresponds to the law referred to in paragraph (a)". relevant authority is defined in relation to a range of officers. Division 4 of Part 4 provides that a "relevant authority" has the power to stand down a judicial officer, judicial registrar or VCAT officer where certain requirements are satisfied. Paragraph (a) of the definition provides that, in relation the Chief Judge, the Chief Magistrate, the President of VCAT, the President of the Children's Court or the State Coroner, the relevant authority is the official members of the Board (other than the person who is subject of the complaint, Part 4 referral or health request). For instance, if there was a complaint against the Chief Magistrate, the relevant authority for the Chief Magistrate would be the other official members noted in clause 8(3). The alternate member of another official member could exercise the power of an official member in these circumstances. For the purposes of paragraph (b) of the definition, the Chief Justice is a "judicial officer of the Supreme Court not referred to in paragraph (a)" and is, accordingly, the only person empowered to stand him or herself down. relevant head of jurisdiction means the head of jurisdiction who receives relevant information regarding the progress of a complaint, Part 4 referral or health request, and who assumes responsibility for the implementation of any recommendation for corrective action which may result. An officer may have more than one relevant head of jurisdiction. 5

 


 

The term "relevant head of jurisdiction" can be contrasted with "head of jurisdiction", which describes the judicial officers who head each Victorian court and VCAT. Non-heads of jurisdiction In cases involving an officer who is not themself a "head of jurisdiction"-- Such officers will potentially have multiple "heads of jurisdiction" because many will have official roles in two, or potentially three, courts or tribunals. For example, most magistrates are assigned to the Coroners Court and the Children's Court (even if the magistrate has never considered a coronial matter or Children's Court matter). Similarly, the President of VCAT is also a Supreme Court judge, and the Vice-Presidents of VCAT are County Court judges. Where such overlapping court or tribunal memberships exist, the definition provides that the head of jurisdiction of an officer's 'primary' court will always act as a "relevant head of jurisdiction". For example, the Chief Magistrate will always be a relevant head of jurisdiction in relation to a magistrate (irrespective of whether the magistrate is appointed or assigned to the Children's or Coroners Courts). The Chief Judge will always be a relevant head of jurisdiction for County Court judges (irrespective of whether the County Court judge is appointed or assigned to VCAT). In cases of overlapping membership, the State Coroner, President of the Children's Court, or President of VCAT may elect to be a "relevant head of jurisdiction" under clause 51 in addition to the head of jurisdiction of the subject officer's 'primary' court. The election of the State Coroner, President of the Children's Court or President of VCAT may be informed by their current responsibilities and the connection between the issues raised in the complaint, Part 4 referral or health request and the court or tribunal over which they preside. The outcome may be that there are two or three heads of jurisdiction serving as a "relevant head of jurisdiction". 6

 


 

The responsibilities reposed in the relevant head of jurisdiction (where two or more are acting) need not be exercised jointly by mutual agreement. Powers exercisable in relation to actioning a recommendation made by the Commission, investigating panel or investigator may be exercised separately in accordance with the individual judgment of each head of jurisdiction. It is anticipated, however, that the Commission process will foster consultation and collaboration between the heads of jurisdiction in whose court or tribunal a subject officer is appointed or assigned. Heads of jurisdiction Certain heads of jurisdiction belong to a court which is higher in the appellate hierarchy than the court or tribunal over which they preside. Relevantly, the President of VCAT is a judge of the Supreme Court, and the President of the Children's Court and the State Coroner are judges of the County Court. Based only on the definition of the "relevant head of jurisdiction"-- · the "relevant head of jurisdiction" of the President of VCAT is the Chief Justice under paragraph (a) of the definition; and · the "relevant head of jurisdiction" of the President of the Children's Court and the State Coroner is the Chief Judge under paragraph (b) of the definition. However, the definition of "relevant head of jurisdiction" needs to be read in conjunction with clause 50, which authorises the Commission to nominate a person as a relevant head of jurisdiction in certain circumstances. The effect of the definition of relevant head of jurisdiction and clause 50 is that-- · if a person is nominated under clause 50(2), that person is deemed to be the relevant head of jurisdiction for the relevant officer (in relation to the particular matter); and · if no person is nominated under clause 50(2), the following would be the relevant head of jurisdiction-- · in relation to the Chief Justice and the President of VCAT--the Chief Justice; 7

 


 

· in relation to the Chief Judge, State Coroner and President of the Children's Court--the Chief Judge; and · in relation to the Chief Magistrate--the Chief Magistrate. VCAT officer means a member of VCAT who is not a judicial officer. A "member" of VCAT and "judicial officer" are defined in clause 3(1). Section 38 of the Interpretation of Legislation Act 1984 currently defines the expression "VCAT". Vexatious complainant means a person in respect of whom a declaration under clause 52 is in force, or a person who is declared by order under section 21 of the Supreme Court Act 1986 to be a vexatious litigant. Section 21 of the Supreme Court Act 1986 currently provides that the Attorney-General may apply to the Supreme Court for an order that a person be declared a vexatious litigant. The Supreme Court may make an order under section 21 of the Supreme Court Act 1986 if it is satisfied that the person has habitually, persistently and without any reasonable ground instituted vexatious legal proceedings (whether civil or criminal) in a court or tribunal. Clauses 3(2)(a) and (b) provide that a reference in the Bill to a function includes a reference to a power and a duty, and that a reference to the exercise of a function includes, where the function is a duty, a reference to the performance of the duty. Clause 3(2)(c) provides that the reference to the exercise of a function of a judicial officer, judicial registrar or VCAT officer includes a reference to any function exercised in any capacity in which the officer is appointed or assigned. The exercise of an official function would extend to the exercise of powers conferred under either statute or the royal prerogative which are-- · conferred persona designata--i.e. conferred on a judge personally and not in their judicial capacity (although the holding of judicial office may be a prerequisite for appointment); or 8

 


 

· conferred ex officio--i.e. conferred on a judge in an official capacity by virtue of holding an existing judicial office. For example, the functions of a magistrate would include-- · conducting a committal proceeding; · issuing a warrant (either as constituting the Magistrates' Court, as a magistrate or persona designata); and · exercising the functions of a member of the Victims of Crime Assistance Tribunal. The distinction between acts and occurrences which take place in the exercise of an officer's "functions" has relevance under Part 4, where a complaint or Part 4 referral relating to the capacity of an officer must relate to the officer's capacity "to carry out his or her functions". The references to "functions" in clause 3(2)(c) have the expanded meaning in accordance with clauses 3(2)(a) and (b). PART 2--JUDICIAL COMMISSION OF VICTORIA Division 1--Establishment of the Commission Clause 4 establishes the Judicial Commission of Victoria as a statutory body corporate and provides for matters relating to its functions as a body corporate. The Commission does not have the power to acquire, hold or dispose of real property. As a public statutory body, the Commission is subject to the Financial Management Act 1984 and the Audit Act 1994. Clause 5 provides for the functions of the Commission, including providing professional development, education and training services for judicial officers, judicial registrars and VCAT officers. The Bill provides for the Commission to be constituted by two divisions to carry out its functions. Any delegation of the functions reposed in the Commission under the Bill to a division of the Commission must be effected under clause 7. The Commission's powers under subclause (3) are not "at large" and are to be read subject to the Bill as a whole. For instance, the Commission cannot acquire interests (including leasehold) in real property. 9

 


 

The references to functions in this clause have the extended meaning in accordance with clauses 3(2)(a) and (b). Clause 6 provides that the Commission must obtain approval from the Attorney-General to-- · acquire or dispose of any personal property, right, or privilege for consideration of more than the maximum monetary limit; or · dispose of any personal property, right, or privilege that has a value of more than the maximum monetary limit. The maximum monetary limit is $100 000 or a higher amount prescribed by regulation. The reference to "personal property, right or privilege" in subclause (1), is understood in light of the limitations imposed by clause 4(2)(d) and is a reference to rights (including proprietary rights) which do not relate to land or real property. The "disposal" of a personal property right under subclause (1)(b) includes the creation of a security interest by way of a charge or mortgage over personal property. Clause 7 provides for the delegation of functions by the Commission and provides for functions that must not be delegated. Delegation to official committee The Commission (through the Board) may delegate any function under Part 4, 6 or 7 in relation to a complaint, Part 4 referral or health request concerning a judicial registrar or VCAT officer to an official committee established under clause 111. These delegable functions concerning a judicial registrar or VCAT officer include the functions noted in subclauses (3)(c), (d), (e) and (f). Delegations generally The Board may delegate a range of other functions in cases involving judicial officers, judicial registrars and VCAT officers to a range of nominated persons including the Chief Executive Officer. Delegations to a member of the Board may be made to a class of Board members, such as to-- · official members of the Board; or · appointed members of the Board. 10

 


 

The delegations may also be made to a committee consisting of members of the Board. This committee could be an official committee or a different committee established by the Board. The delegation to a person employed under Part 3 of the Public Administration Act 2004 could be a delegation to the holder of an office or position. Delegations under clause 7(1) may not include the powers in clauses 7(3)(a) to (f) or any function prescribed for the purposes of the clause. The power to delegate functions and the exercise of delegated functions under the Bill is governed by sections 42 and 42A of the Interpretation of Legislation Act 1984. The references to functions in this clause have the extended meaning in accordance with clauses 3(2)(a) and (b). Division 2--Board of the Commission Clause 8 establishes the Board as the governing body of the Commission and provides for the appointment and composition of the Board, including official members and appointed members. Subclause (3) nominates the heads of jurisdiction of the Victorian courts and VCAT as official members of the Board. Such references in subclause (3) are ambulatory and encompass either those officers who are appointed to the named positions, or another officer who, in the appointed head of jurisdiction's absence, is either appointed in their own right as an acting head of jurisdiction (such as under section 8(1) of the Magistrates' Court Act 1989), or are appointed to the position of head of jurisdiction in an acting, temporary capacity (such as under section 8(1A) of the Magistrates' Court Act 1989). Subclause (4) provides that the Attorney-General must consult with the Chief Justice before recommending the appointment of an appointed member. The expression "consult" does not require the Chief Justice to agree to the proposed appointments. Subclause (5) provides that the ex officio service by a judge or magistrate as an official member of the Board is taken to be service as a judge or magistrate, as the case requires. Service in relation to Commission functions does not, therefore, constitute the acceptance of a non-judicial office for the purposes of relevant prohibitions contained in sections 84(1) and (2) of the Constitution Act 1975. 11

 


 

The references to functions in this clause have the extended meaning in accordance with clauses 3(2)(a) and (b). Clause 9 provides for the eligibility of a person to be appointed as an appointed member. The reference to a "court of the Commonwealth" would include the High Court and any court that has been created by the Commonwealth Parliament. Having regard to the education functions of the Commission under clauses 5(1)(a), (b), (c), (d) and (e), two appointed members must have expertise in organisational development or delivery of education services. Such appointees may, but do not need to, be Australian lawyers within the meaning of the Legal Profession Act 2004. Having regard to the need for community representation in relation to the complaints function of the Commission under clause 5(1)(f), the remaining two appointed members must not be Australian lawyers within the meaning of the Legal Profession Act 2004. Clause 10 provides for the terms and conditions of appointed members including re-appointment or re-appointments, sets a maximum period of appointment and applies the Public Administration Act 2004 (excluding Part 3) to the office of appointed member. The references to functions in this clause have the extended meaning in accordance with clauses 3(2)(a) and (b). Clause 11 provides for the resignation and removal of appointed members of the Board and the reporting of a removal to Parliament. The removal of appointed members by the Governor in Council is restricted to circumstances outlined in the clause. Clause 11(2)(a), which relates to a person convicted or found guilty of certain offences, does not limit the relevance of any allegation of criminality, or conviction for a lesser offence, to the discretion to dismiss an appointed member under clause 11(2)(b)(iv). The expression "insolvent under administration" is currently defined under section 38 of the Interpretation of Legislation Act 1984. Currently, the reference to "an indictable offence", in relation to offences under Victorian law, would be read having regard to section 112 of the Sentencing Act 1991, section 2A of the Wrongs Act 1958 and section 2B of the Crimes Act 1958. For an offence under Commonwealth law, "an indictable 12

 


 

offence" would be read having regard to section 4G of the Crimes Act 1914 of the Commonwealth. The references to functions in this clause have the extended meaning in accordance with clauses 3(2)(a) and (b). Clause 12 provides for an official member of the Board to appoint an alternate official member. The reference to "a judge or magistrate" in clause 12(2)(a) would not encompass an associate judge, acting judge or acting magistrate. Clause 13 empowers the Governor in Council to appoint a person as an appointed member's alternate member. Clause 14 provides for the appointment or nomination of alternate members. Subclause (3) provides that an alternate member may act only in the "absence of a member". An absence would encompass physical absence from the State, annual leave or unavailability through illness. The Bill does not oust any residual common law obligation to accord natural justice. The effect is that where principles of actual or apprehended bias provide that an official member should not act, the member is "absent" for the purposes of subclause (3). The reference to "official members" of the Board in clause 12 is ambulatory and encompasses those officers who are either appointed to the named positions in clause 8(3), or another officer who, in the appointed head of jurisdiction's absence, is either-- · appointed as an acting head of jurisdiction (such as under section 8(1) of the Magistrates' Court Act 1989); or · holds a position that results in the person acting as the head of jurisdiction when certain events occur, such as a vacancy in the office or when the head is on leave (such as under section 8(1A) of the Magistrates' Court Act 1989 or section 9(3) of the Coroners Act 2008). Accordingly, a person who is an "alternate member" may only act when the head of jurisdiction, and any person who is exercising the powers of the head of jurisdiction, is absent. If an acting head of jurisdiction or a person who is able to perform the duties of the head of jurisdiction is present, the 13

 


 

official member is not "absent" within the meaning of subclause (3). Under subclause (3), the alternate member may act in the place of the member. While acting, the person is taken to be a member of the Board and, under subclause (3)(c), may exercise any of the functions under the Bill of the member on whose behalf he or she acts, including functions that are given to the particular member and not to the Board. This would enable the alternate member to-- · exercise powers in accordance with a delegation under clause 7(1)(a) or (b) (where the delegation relates to the relevant member); · exercise powers as a member of an official committee; · exercise powers as the chairperson of the Board (if the person is an alternate member of the Chief Justice); · exercise functions as a member of the Board under clauses 16 or 17 (including in relation to functions noted in clause 7(3)); · exercise powers as a relevant authority, in accordance with paragraph (a) of the definition of "relevant authority" (if the person is an alternate member of an official member). Examples The Chief Justice is interstate in circumstances where no Acting Chief Justice has been appointed under section 79(1) of the Constitution Act 1975. The relevant member of the Board is therefore "absent" and the alternate member may act. The Chief Justice is interstate for an extended period and an Acting Chief Justice is appointed. The Acting Chief Justice is able to attend a meeting of the Board and so there is no "absence" of the official member to enable the alternate member to act. To avoid any suggestion of improper influence, subclause (4) provides than an alternate member may not participate in Board decisions where the Commission considers a matter relating to the member on whose behalf the alternate member would otherwise act. 14

 


 

Clause 15 provides that an official member subject to a complaint, Part 4 referral or health request must not perform functions as a member of the Board, to the extent that the exercise of such functions could relate to the handling of the matter involving the judicial member. This clause does not limit the obligations placed on members of the Board to avoid conflicts of interest. The references to functions in this clause have the extended meaning in accordance with clauses 3(2)(a) and (b). Clause 16 provides for the holding of meetings of the Board. The reference to the Chief Justice in clause 16(2)(a) would encompass an Acting Chief Justice who has been appointed under section 79(1) of the Constitution Act 1975 and, where appropriate, an alternate member of the Chief Justice. The reference to a "majority of the members" would be 6 members when there are 10 members of the Board. If (due to the resignation or death of an appointed member) there were 9 members of the Board, quorum would be 5 members. The reference in clause 16(4) to members who are "present and voting" would not encompass members who are present at a meeting, but abstain from voting. The reference in clause 16(6) to "telephone, video conference or any similar means of communication" would encompass means of communication that enabled the members to engage in concurrent communication with the other members of the Board. It would not encompass email or Short Message Service (SMS). Clause 17 provides for resolutions of members of the Board without meetings. The clause refers to "all of the members for the time being of the Board". In some situations the requirements for "all of the members" to approve the document may be satisfied by fewer than 10 members. Examples An official member of the Board is "absent" because of a conflict of interest and there is no alternate official member appointed under clause 12(1). Only 9 members may vote on the circulating resolution. An appointed member has died and a replacement member has not yet been appointed. Only 9 members may vote on the circulating resolution. 15

 


 

Clause 18 provides that acts or decisions of the Commission are valid despite a range of potential technical defects and empowers the Commission to correct any record of a decision in certain circumstances. For instance-- · if an alternate member exercised the powers of an official member when the power should have been exercised by an acting head of jurisdiction, there would be "a defect or irregularity in, or in connection with the constitution of the Board", but the purported decision of the Board would be valid and effective; or · if a decision had a defect or irregularity in, or in connection with, a delegation under clause 7 to a person or body (such as a mis-description of the entity in the instrument of delegation or the instrument referring to the wrong clause of the Bill), the purported decision of the entity would be valid. References to the "Commission" in this clause encompass a delegate of the Commission, including an official committee. The reference to an "act or decision" encompasses a recommendation or finding of the Commission, including a dismissal. Division 3--Chief Executive Officer and staff of the Commission Clause 19 provides for staffing of the Commission including the appointment of a Chief Executive Officer. Subclause (3) deems that-- · the Chief Executive Officer and the people employed under clause 19(1)(b) are an Administrative Office in relation to the Department of Justice for the purposes of the Public Administration Act 2004; and · the Chief Executive Officer is taken to be an Administrative Office Head of the office of the Commission for the purposes of the Public Administration Act 2004. The effect of subclause (3) is that-- · the Chief Executive Officer has the functions of an Administrative Office Head under the Public Administration Act 2004 in relation to the people employed under clause 19(1)(b); and 16

 


 

· pursuant to the definition of "public service body Head" in the Public Administration Act 2004, the Chief Executive Officer has the functions of a public service body head, including the rights, powers, authorities and duties of an employer in relation to the people employed under clause 19(1)(b); and · the Secretary to the Department of Justice has, subject to the Bill, the functions under the Public Administration Act 2004 in relation to the Chief Executive Officer and the Office of the Commission. The deeming provision applies subject to the Bill. For instance, the Chief Executive Officer is a Governor in Council appointee and is not an employee under section 12(2) of the Public Administration Act 2004. Clause 20 provides that the Governor in Council may appoint a Chief Executive Officer on the recommendation of the Attorney- General. Subclause 20(2)(c) refers to "a court of the Commonwealth". This reference would include the High Court and any court that has been created by the Commonwealth Parliament. Subclause (4) relates to the term of the appointment and provides for re-appointment of the Chief Executive Officer for further terms. Subclause (5) provides that the office of Chief Executive Officer becomes vacant through the occurrence of a range of specified events, including resignation, a finding of guilt in relation to indictable offences, the Chief Executive Officer becoming "insolvent under administration", and formalised removal under subclause (6). The term "insolvent under administration" is currently defined in section 38 of the Interpretation of Legislation Act 1984. Currently, the reference to "an indictable offence", in relation to offences under Victorian law, would be read having regard to section 112 of the Sentencing Act 1991, section 2A of the Wrongs Act 1958 and section 2B of the Crimes Act 1958. For an offence under Commonwealth law, "an indictable offence" would be read having regard to section 4G of the Crimes Act 1914 of the Commonwealth. Subclause (6) provides for the removal of the Chief Executive Officer by the Governor in Council acting on the recommendation of the Attorney-General. 17

 


 

The Attorney-General may make the recommendation to the Governor in Council on any ground, subject to any implied requirements as to good faith, reasonableness, and the need for a demonstrable connection between the decision to dismiss and the proper functioning of the Commission. Subclause (7) requires the Attorney-General to "consult" with the Commission in relation to both a removal and a dismissal. While the expression "consult" connotes a genuine deliberative process, the Attorney-General is not bound by any recommendation of the Commission and is required to exercise his or her own independent judgment. Clause 21 provides for the appointment of an Acting Chief Executive Officer by the Governor in Council acting on the recommendation of the Attorney-General. The office may be reappointed for further terms, with each term being no longer than 6 months. Subclause (5) provides for the removal of the Acting Chief Executive Officer by the Governor in Council acting on the recommendation of the Attorney-General. The Attorney-General may make the recommendation to the Governor in Council on any ground, subject to any implied requirements as to good faith, reasonableness, and the need for a demonstrable connection between the decision to dismiss and the proper functioning of the Commission. Subclause (6) requires the Attorney-General to "consult" with the Commission in relation to a decision to remove an Acting Chief Executive Officer. While the expression "consult" connotes a genuine deliberative process, the Attorney-General is not bound by any recommendation of the Commission and is required to exercise his or her own independent judgment. The references to functions in this clause have the extended meaning in accordance with clauses 3(2)(a) and (b). Division 4--Guidelines and reports Clause 22 provides for the approval and publication of guidelines by the Commission. Guidelines promulgated under subclause (1)(a) are not binding directives which control how persons with independent decision-making powers under the Bill are to discharge their 18

 


 

statutory functions. The guidelines would therefore not bind an investigating panel or an investigator. Guidelines issued under subclause (1)(a) are provided to guide the investigative process and to inform the public of the nature of the Commission's investigatory processes. Clause 23 provides for annual reporting by the Commission. The references to the Commission in subclause (1)(b)(vii) would include a reference to an official committee. Clause 24 provides for further reporting by the Commission in relation to the Commission's educational and other functions. The reference to educational functions in the heading of clause 24 is not intended to limit the functions which may be referred to in a report of the Commission under subclause (4). Subclause (5) provides that the Commission must specify whether the Attorney-General is required to cause a copy of any report to be tabled in Parliament. Clause 25 provides that the Chief Executive Officer may report to the Attorney-General on any matter relevant to the performance of the Commission's functions. The clause creates a clear statutory avenue for the disclosure of information which relates to any of the Commission's functions, including its complaints handling functions. Such disclosure may be of information which would not otherwise be released to a complainant, the Attorney-General, or the general public under other provisions of the Bill, and may include information which relates to the investigation of specific judicial officers, judicial registrars or VCAT officers. Disclosure under clause 25 serves an important constitutional function. To protect judicial independence and to avoid unwarranted interference with the judicial process, the deliberations of the Commission are necessarily confidential and are conducted by judicial officers who may be closely connected with the officers subject to investigation. There is accordingly a danger that the Commission may, without any justification, be regarded as conducting proceedings in such a way as to assist a colleague without any effective form of external scrutiny. The ability of a senior and independent officer of the Commission to make an independent assessment regarding the 19

 


 

proper conduct of investigations and financial matters relating to the expenditure of public money by the Commission is necessary to avoid such unwarranted imputations. PART 3--JUDICIAL EDUCATION FUNCTIONS Clause 26 relates to the education functions of the Commission. Clause 27 provides for the naming of the education division of the Commission. PART 4--INVESTIGATIONS BY THE COMMISSION Division 1--Making of complaints and Part 4 referrals Clause 28 provides for any person to make a complaint to the Commission about the conduct or capacity of judicial officers, judicial registrars or VCAT officers. The expression "person" is currently defined in section 38 of the Interpretation of Legislation Act 1984 to include a body corporate and a body politic, as well as natural persons. This would include a Secretary to a Department, the Law Institute of Victoria Limited or The Victorian Bar Inc. While judicial officers, judicial registrars and VCAT officers are not excluded from the definition of a "person" capable of making a complaint under clause 28, it is anticipated that concerns originating within the judiciary will generally be dealt with under clauses 29 and 30. A complaint may only be made about a presently serving person who meets the clause 3(1) definition of "judicial officer", "judicial registrar" or "VCAT officer". A complaint against any other person (including a person formerly holding those positions) is not a "complaint" for the purposes of the Bill. The power of the Commission to enable an investigation into a person who is not at the time of an investigation a judicial officer, judicial registrar, or VCAT officer under clause 36(1)(e) does not authorise the making of a complaint about a person who is not, at the time of the making of a complaint, a judicial officer, judicial registrar or VCAT officer. Examples A written statement about the conduct of a judge of the Federal Court of Australia is not a complaint for the purposes of clause 28. 20

 


 

A written statement about the conduct of a retired Supreme Court judge is not a complaint for the purposes of clause 28. An oral statement about a presently serving member of VCAT is a complaint for the purposes of clause 28 (although the statement may fail to comply with the requirements of clause 31). Clause 28(a), (b) and (c) provides that a complaint may relate to the "conduct" of a judicial officer, judicial registrar or VCAT officer, even where the alleged conduct occurred in a non- official, personal capacity. Such conduct may occur prior to the officer's current appointment, however the age of a matter has relevance to the decision to dismiss without further investigation under clause 36. The breadth of paragraphs (a), (b) and (c) is informed by the need for judicial officers, judicial registrars and VCAT members to maintain, and be seen to maintain, the highest standards of personal integrity so as to inspire public confidence in their official actions. Paragraphs (d), (e) and (f) provide that a complaint may relate to the "capacity" of a judicial officer, judicial registrar or VCAT officer to perform their "functions". "Capacity" is not defined but connotes those physical or mental attributes necessary to perform judicial "functions". "Functions" are broadly defined under clause 3(2)(a), (b) and (c) and include a reference to any duty or power exercised in any capacity in which the officer is assigned or appointed. Paragraphs (d), (e) and (f) accordingly require a complaint to relate to whether an officer exhibits the attributes necessary to perform their official duties effectively. Health issues which do not have a direct and real bearing on the performance of official duties are private matters and beyond the purview of the Commission. Example A judge is obese. On any realistic and practical assessment this has no bearing on the judge's capacity to exercise his or her official functions. A written statement referring to the judge's obesity, without any further allegation as to how this may have adversely impacted the exercise of the judicial function, is not a "complaint" within the meaning of clause 28. 21

 


 

Clause 29 provides for a head of jurisdiction to refer a matter to the Commission regarding the conduct or capacity of a judicial officer, judicial registrar or VCAT officer of the court or tribunal of which he or she is the head (a Part 4 referral). For officers that are assigned or appointed to two or more courts or tribunals, there will be more than one head of jurisdiction that may make a Part 4 referral in relation to that officer. A Part 4 referral initiated by a head of jurisdiction under clause 29 may be made on the same bases as a complaint initiated under clause 28. Currently, the President of VCAT, the President of the Children's Court and the State Coroner are members of a Court higher in the appellate hierarchy than the court or tribunal over which they preside. These officers accordingly have a "head of jurisdiction" capable of referring a matter under clause 29. The Chief Justice, Chief Judge and Chief Magistrate are not members of any higher court. Accordingly, there is no head of jurisdiction (apart from themselves) capable of making a referral under clause 29 in respect to those officers. In cases involving the Chief Justice, Chief Judge or Chief Magistrate, a member of their respective courts could make a complaint as a "person" under clause 28, or the Attorney- General may make a referral under clause 30. Clause 30 provides for the Attorney-General of the State of Victoria to refer a matter to the Commission regarding the conduct or capacity of any judicial officer, judicial registrar or VCAT officer (a Part 4 referral). A Part 4 referral initiated by the Attorney-General under clause 30 may be made on the same bases as a complaint initiated under clause 28. Clause 31 provides for regulations to prescribe the manner for making a complaint or Part 4 referral and the prescribed information that must be in the complaint or referral. Pursuant to clause 124(2), the prescribed requirements for a complaint could be different from the prescribed requirements for a Part 4 referral. Clause 32 provides that a complaint or Part 4 referral may be made despite other proceedings or investigations that dealt with, or are dealing with, the same subject matter. This would include overseas investigations or proceedings. 22

 


 

The existence of any such parallel proceeding may, however, be an appropriate reason for the Commission to adjourn an investigation under clause 55. Clause 33 enables the Commission to request a complainant to provide further information about the complaint or referral or to produce any document relevant to the complaint or referral. "Document" is currently defined under section 38 of the Interpretation of Legislation Act 1984 and includes physical and electronically maintained documents. A request under subclause (1)(a) may relate both to existing documents and any document which the Commission may request to be created for the purpose of fully understanding a complaint or Part 4 referral. Example A complaint is accompanied by voluminous materials relating to the conduct of a previous case, including transcripts, affidavits and other tendered documentary evidence. The Commission may request a complainant to provide a precise written summary and a table of contents and to structure the material provided in a particular manner. Clause 33 is intended to assist the Commission to sufficiently understand a complaint. Clause 33 does not limit the Commission's general investigatory powers under clause 56, which may extend to requesting information (whether verified or not) from persons other than a complainant. Subclause (1) is intentionally couched in terms of a "request" for further information, and compliance by the complainant is not a legal requirement. Such a request does not abrogate any applicable privileges and immunities attaching to documents or information. A failure to adhere to any reasonable request under clause 33 may, however, justify a decision to dismiss the complaint under clause 36(1)(g). For example, if a person has, despite a request, failed to sufficiently articulate specific factual allegations such as to fairly enable the Commission or a subject officer to understand a person's basic allegation, the Commission could dismiss the complaint under clause 36(1)(g). A complainant may be required to verify their complaint by a statutory declaration under subclause (1)(b). 23

 


 

Clause 34 allows a person to seek to withdraw a complaint or Part 4 referral if it has not been dismissed or referred to an investigating panel, an investigator or the relevant head of jurisdiction. If a person seeks to withdraw a complaint or Part 4 referral under clause 34(1), the Commission must determine whether to accept the withdrawal and dismiss the matter or to not accept the withdrawal and continue the investigation. If the investigation is continued, the complaint or referral stays on foot and the obligations to provide notice or information to the complainant or person initiating the referral is retained. Division 2--Commencement of investigation Clause 35 subjects the Commission to a general duty to investigate a complaint or Part 4 referral. In effect, subclause (1) provides that a complaint or Part 4 referral that substantially complies with the requirements of clause 31 must be investigated, subject to clause 36. Substantial compliance would be determined by having regard to the extent of compliance and the purpose of the requirements. Example The prescribed form for making a complaint requires that a person provide complete details of their current home and work address. A person of no fixed address provides a "c /-" address. This constitutes "substantial" compliance. Notwithstanding subclause (1), subclause (2) provides that a matter may nonetheless be investigated at the discretion of the Commission where there is not substantial compliance with applicable procedural requirements. It is anticipated that the discretion under subclause (2) could be exercised where a complainant, while not clearly articulating an allegation of specific wrongdoing, expresses credible concerns which could readily be clarified by the Commission's own investigatory processes. Clause 36 specifies a range of instances where a matter must not be investigated. Pre-appointment conduct Subclause (1)(a) precludes the investigation of pre-appointment matters of a less serious nature, or matters that were disclosed in writing to the person appointing the officer or the Attorney-General. 24

 


 

Pre-appointment conduct for the purposes of subclause (1)(a), in cases where officers have been the subject of multiple successive Victorian appointments, is conduct taking place before the first appointment of the subject officer as a Victorian judicial officer, judicial registrar, or VCAT officer. In cases involving Associate Judges appointed prior to 2008, the reference is intended to include conduct prior to their initial appointment as a Master. Collateral attacks on judgments Subclause (1)(b) provides for the dismissal of matters relating "directly" to the merits or lawfulness of a decision or procedural ruling made by the officer. It is not a function of the Commission to conduct appeals or reviews and any investigation is not to be conducted as a rehearing of the disputed issues of a prior proceeding or a de facto appeal. A complaint that a judge misapplied the law would accordingly be dismissed under subclause (1)(b) in the overwhelming number of cases. However, misapplying the law, especially if the misapplication is repeated and serious, could in extreme cases constitute misbehaviour (for example, the legal error evidences a lack of understanding of central legal principles, relevant legislative reform, or the officer having failed to have taken necessary steps to understand the case before them). A lack of legal acumen could also indicate a lack of capacity (for example, dementia or a stroke). In such extreme cases, the complaint or Part 4 referral is only "indirectly" related to the legality of a decision, and, as a matter of substance, centrally concerns questions of capacity or conduct. Where a complaint relates to the quality or correctness of judicial decision making, it may be appropriate to adjourn the matter under clause 55 while any appeal is resolved to avoid any suggestion that the Commission is seeking to substitute its own legal judgment for that of the subject officer or appeal court. Events in the private life of officers Subclause (1)(c) refers to matters taking place in the "private life" of an officer that-- 25

 


 

· do not affect the exercise of the officer's functions; and · do not affect the officer's "suitability" to hold office. An assessment of what conduct materially bears on the "suitability" of a person for judicial office may require a consideration of the high standards of personal integrity which are necessarily demanded of tenured persons in positions of public trust who are not, in any immediate way, removable or otherwise accountable to the broader community for their decisions. Such considerations should however be informed by a realistic assessment of potential human frailty and an acknowledgement that judicial officers may, in response to circumstances where they do fall short of such high standards, remedy any adverse public perceptions through their appropriate handling of the matter. Example A random breathalyser test of a judge records a blood alcohol reading of 0·06. The judge fully acknowledges that he has fallen short of the high standards expected of members of the judiciary, pleads guilty before a magistrate, publicly acknowledges and apologises for his conduct and has not previously committed any offences. This may be an instance where the corrective steps taken by a judge, viewed in light of the nature of the relevant private conduct, could justify the finding that the conduct, when viewed as a whole, could not affect the exercise of the "functions" of the judge or his or her "suitability" to hold office. In such instances, the judge could be regarded as having acted "judicially" in dealing with conduct that fell short of appropriate judicial standards. Older conduct Subclause (1)(f) requires the dismissal of a matter where the subject matter is alleged to have taken place too long ago to justify further consideration. Relevant considerations may include the capacity for the officer to recollect relevant events, collate relevant materials, and otherwise respond to an allegation that relates to events that occurred a long time ago. The more serious and credible the allegation, the more appropriate an investigation may be, age notwithstanding. 26

 


 

Example An allegation is that a judicial officer was rude to a litigant on one occasion ten years ago. This would have occurred at too remote a time to justify further consideration. Otherwise inappropriate to proceed with investigation. Subclause (1)(g) provides a broad discretion to the Commission to dismiss a matter where, having regard to all the circumstances of the case, further consideration of the complaint or Part 4 referral is unnecessary. The discretion under subclause (1)(g) is to be informed by the general objects and purposes of the Commission process which include the fair, informal, and effective resolution of actual grievances in the least intrusive manner consistent with those objects. Accordingly, the Commission may exercise its powers under subclause (1)(g) where, for example-- · the matter is trivial; · the complainant lacks an effective interest in the subject matter of the complaint; · a full apology or other corrective steps have been taken on the officer's own initiative; or · the likely outcome will not warrant the time, resources, and inconvenience which would be necessary to resolve the matter. Subclause (1)(g) is couched in terms of a decision to "investigate" or "further investigate" a matter. Accordingly, subclause (1)(g) may apply when making decisions on whether to conduct an investigation, but has no application in cases where an investigation has been conducted and a substantive decision reached. This is because the role of the Commission, and any other body who may make decisions on the grounds set out in clause 36, is primary fact-finding. It is not to make an assessment of whether a judicial officer should remain in office notwithstanding proved misbehaviour or incapacity. Investigations into retired officers Subclauses (1)(e) and (2) provide for the continuation of investigations into persons who cease to be officers. If the officer consents to the continuation of the investigation, the 27

 


 

Commission has the discretion to continue the investigation if it is appropriate in the circumstances. Subclauses (1)(e) and (2) are to be read in light of the central requirement that a complaint or Part 4 referral initiated under clauses 28, 29 and 30 be directed against a currently serving officer. Accordingly, subclause (2) only authorises the continuation of an investigation which was effectively initiated when the subject officer was a "judicial officer", "judicial registrar" or "VCAT officer" at the time of the initial complaint or Part 4 referral. The balance of the clause relates to matters of procedure. Subclause (4) allows the Commission to dismiss a matter in whole or in part. Clause 37 provides for written notice to be given of decisions to dismiss under clause 36. A decision to dismiss a matter which was a referral by the Attorney-General is notified to the Attorney- General under clause 60 (with respect to a judicial officer) or clause 91 (with respect to judicial registrars or VCAT officers). Clause 38 outlines the steps necessary in order for the Commission to decide that it will not dismiss a matter under clause 36 and will continue an investigation. Once the Commission has decided under clause 38(1) to continue an investigation, the Commission must deal with the matter under clause 57 (for judicial officers) or clause 88 (for judicial registrars and VCAT officers). In the usual course, an officer will be given an opportunity to present material relevant to a summary dismissal decision under clause 36, and will be invited to comment on the substantive merits only if the matter is not dismissed. Example The Commission may decide to investigate whether the matter should be dismissed under clause 36, but does not wish to unduly impose on the subject officer by requiring that they respond at the same time to the substantive issues of fact raised in the matter. The Commission in such cases may adopt the following procedure-- · serve notice under clause 38(2) inviting input on a decision to dismiss under clause 36; 28

 


 

· determine not to dismiss the matter on the basis of the material provided by the officer and determine to progress the matter under clause 38(1) (this decision could be made by the Board or a delegate of the Commission); · serve a subsequent notice under clauses 57(2) or 88(2) to invite submissions in relation to the merits of the matter; · decide the merits under clauses 57(1). The Commission may, however, truncate the process by inviting submissions on both summary dismissal grounds and on the substantive merits of the complaint or Part 4 referral at the same time. Example The Commission may decide to adopt the following procedure in relation to a judicial officer-- · serve notice that satisfies the requirements under clauses 38(2) and 57(2) (this could be one notice that satisfies the requirements of both clauses or two separate notices provided at different times, but before a decision is made under clause 38(1)); · decide to progress the matter under clause 38(1) on the basis of any material provided which relates to the grounds for summary dismissal; · at the same meeting (where all potential heads are present) a head of jurisdiction may elect under clause 51 to be a "relevant head of jurisdiction", following the giving of written "notice" at that meeting under clause 38(4); · make a decision under clause 57(1). Division 3--Health requests Clause 39 provides that Attorney-General, or a head of jurisdiction, may make a "health request" to the Commission if reasonably satisfied that an officer may be suffering from an impairment, disability, illness or condition that may "significantly" affect that officer's functions. 29

 


 

The expression "impairment, disability, illness or condition" is a very broad composite expression that would encompass total or partial loss of a bodily function, the total or partial loss of the use of a part of the body, a disease, a malfunction of a part of the body, a mental or psychological disease or disorder and an addiction. Certain officers (i.e. the Chief Justice, the Chief Judge and the Chief Magistrate) will not have a "head of jurisdiction" (other than him or herself). The expression "significant" relates to the effect that the impairment, disability, illness or condition has on the officer's performance of his or her functions. Subclauses (2), (3) and (4) provide that the Commission is not to automatically action a health request, but must cause the matter to be investigated and make an independent assessment as to whether the officer should be required to undergo a medical examination and/or provide documents relating to previous medical tests and examinations. Pursuant to clause 118, documents may be requested despite their tendency to incriminate the officer. The Commission has a broad discretion under subclause (4) to determine whether it would be appropriate to require the officer to undergo a medical examination and/or provide documents relating to previous medical tests and examinations. Clause 40 provides for the Commission to request that an officer undergo a medical examination. A "medical examination" does not include a range of invasive medical tests, such as blood sampling. Such tests may only be required by a registered medical practitioner under clause 42. While an officer cannot choose the registered medical practitioner who will perform the medical examination, the officer may provide the Commission with alternative reports from a medical practitioner of his or her choice and the Commission must have regard to those reports. Notice must be served on each "head of jurisdiction" under subclause (3). On receipt of such notice, clause 51 provides that, where there are overlapping court memberships, the service of this notice requires the State Coroner, President of the Children's Court or the President of VCAT to decide whether to elect to be a "relevant head of jurisdiction" in relation to the matter. 30

 


 

Clause 41 creates a legal obligation to comply with a request to attend a medical examination. Clause 42 provides for the conduct of a medical examination. Subclause (1)(a) provides for a registered medical practitioner to require the production of relevant documents. Subclause (1)(b) provides for a registered medical practitioner to-- · require the officer to undergo another medical examination (whether performed by that registered medical practitioner or another); or · require the officer to undergo a specified medical test (whether performed by that registered medical practitioner or another). Subclause (3) provides that a failure to undergo the medical examination or provide the reports without reasonable excuse permits the Commission to treat the health request as a Part 4 referral by the person who made the initial health request. Pursuant to clause 118, it would not be a reasonable excuse to fail to undergo the examination or provide the documents based on concerns that the examination or reports may incriminate the officer. Where a health request is converted to a Part 4 referral under subclause (3), it is to be treated as the initiation of a Part 4 referral under clause 29 or 30. The effect is that the subject officer is entitled to the same procedural protections, and may raise the same objections, as any other officer subject to a Part 4 referral. Clause 43 provides in subclause (1) for a registered medical practitioner undertaking a medical examination under clause 40 to provide a report to the Commission, notwithstanding doctor/patient confidentiality or the tendency of the material to incriminate the officer. Subclause (2) deals with matters of procedure and notice. Clause 44 provides for the potential outcomes of a health request. Subclause (2) provides that if the Commission decides that an officer has an impairment, disability, illness or condition that may significantly affect the performance of the officer's functions, the Commission may-- 31

 


 

· refer the matter to the relevant head of jurisdiction, with or without recommendations; or · refer the matter to an investigating panel (for a judicial officer) or investigator (for a judicial registrar or VCAT officer). If the Commission refers that matter to an investigating panel or investigator under subclause (2)(b) or (2)(c), it is not to be treated as the initiation of a Part 4 referral subject to Divisions 1 and 2 of Part 4. Rather, the matter is to be progressed before an investigating panel or investigator under Division 2 of Part 5 (in the case of judicial officers), or under Division 2 of Part 6 (in the case of judicial registrars and VCAT officers), without any of the anterior screening processes under Part 4 or Division 1 of Part 5 or 6. The rationale for the exclusion of Part 4 and Division 1 of Part 5 or 6 is that the officer has already been afforded similar procedural protections under the health requests provisions--to have the matter treated as a new Part 4 referral would delay the process and allow for the re-agitation of similar matters. Clause 45 provides for reporting to the Attorney-General or the head of jurisdiction who made the health request. Division 4--Standing down of officers Clause 46 provides for a process for standing down of a judicial officer, judicial registrar of VCAT officer. Subclause (1) provides that an officer may be stood down by a relevant authority only where-- · there has been a decision to proceed with the investigation of a matter under clause 38(1), or an officer has been requested to undergo a medical examination under clause 40(1)(a); · the relevant authority has determined that the matter raises issues that could warrant consideration of removal; and · the relevant authority considers that the standing down is in the public interest having regard (amongst other matters) to the need to maintain longer term public confidence in the relevant court or tribunal. 32

 


 

"Relevant authority" is defined in clause 3(1). The purpose of subclause (1) is to ensure a person may be stood down only where it established that there is a serious case to answer and the continued exercise of functions by the officer risks the immediate interests of persons before the courts or public confidence in the institution more generally. A clear example would be a case where an officer is subject to serious criminal charges. A stand down order may operate generally or with respect to particular functions under subclause (2), and may extend to the exercise of functions in a different court or tribunal to which the officer is appointed or assigned. Under subclause (3), where a person is appointed or assigned to multiple courts, all potential heads of jurisdiction must be consulted before the decision, although agreement is not required. Example There is a complaint against a magistrate who has been assigned to the Coroners Court. The Chief Magistrate, as the "relevant authority", may decide to stand down the magistrate in relation to both his or her functions in the Magistrates' Court and the Coroners Court. However, the Chief Magistrate must first consult the other "head of jurisdiction" of the magistrate, namely the State Coroner. Subclause (4) provides that the consultation requirement imposed by subclause (3) does not extend to cases where the Chief Judge, Chief Magistrate, State Coroner, President of the Children's Court or the President of VCAT is being stood down. In those cases, the relevant authority is the official members of the Board (other than the person who is the subject of the complaint, Part 4 referral or health request). The relevant authority would be required to exercise its powers in accordance with the requirements of procedural fairness. The references to "functions" in this clause have the expanded meaning in accordance with clauses 3(2)(a), (b) and (c). 33

 


 

Clause 47 provides for alterations to, or revocation of, the standing down of an officer. The alteration could increase, decrease or change the functions for which the person is stood down. The references to "functions" in this clause have the expanded meaning in accordance with clauses 3(2)(a), (b) and (c). Clause 48 prohibits an officer from performing functions to the extent the officer is stood down from performing those functions. Performance of such functions notwithstanding a prohibition does not, however, impact on the validity of any judicial or other decision. The references to "functions" in this clause have the expanded meaning in accordance with clauses 3(2)(a), (b) and (c). Clause 49 provides for the mandatory reinstatement of an officer where-- · the matter is dismissed; · the matter is referred to the relevant head of jurisdiction (with or without recommendations); or · the matter is referred, ultimately, to the Attorney- General or the Houses of Parliament for consideration of removal, but a decision is made to not remove the officer (e.g. the Attorney-General may determine that he will not recommend that the judicial registrar or VCAT officer be removed from office or one of the Houses of Parliament may fail to pass the resolution seeking the removal of the judicial officer with the required special majority). Division 5--General provisions Clause 50 provides for complaints, Part 4 referrals or health requests against a judicial officer who a head of jurisdiction. The operation of the clause is discussed in relation to the definition of relevant head of jurisdiction in clause 3(1). Subclause (2) provides that a range of senior serving or former judicial officers may be nominated to exercise the functions and responsibilities of a "relevant head of jurisdiction" under the Bill. The discretion as to whether to appoint, and (subject to subclause (3)) the identity of the appointee, is intentionally broad. 34

 


 

In the absence of a nomination under subclause (2), the relevant head of jurisdiction is the head of jurisdiction determined pursuant to the definition of relevant head of jurisdiction under clause 3(1). Example Where the Chief Justice is the subject of a complaint which is substantiated and referred to a "relevant head of jurisdiction" with a recommendation that the officer be "counselled", the Commission may nominate, under subclause (2), the Chief Justice of the Supreme Court of New South Wales to act as "relevant head of jurisdiction" (provided the NSW Chief Justice consents to the nomination). The Chief Justice of New South Wales may, under the Bill, exercise his or her independent discretion as to the propriety of such counselling and must provide a report under clause 68(2) to the Commission. Clause 51 provides an election process to determine who will be a "relevant head of jurisdiction" in instances where a judicial officer is appointed or assigned to two or more courts or tribunals and that officer is not, him or herself, a head of jurisdiction. A relevant head of jurisdiction is defined in clause 3(1) and it needs to be read in conjunction with clause 50, which authorises the Commission to nominate an alternate person to act as the "relevant head of jurisdiction" in certain circumstances. The operation of the clause is discussed in relation to the definition of relevant head of jurisdiction in clause 3(1). In relation to magistrates assigned to the Children's and Coroners Courts, subclauses (1) and (2) confer on the President of the Children's Court and the State Coroner, respectively, the capacity to elect to be a "relevant head of jurisdiction" in addition to the Chief Magistrate. In relation to County Court judges appointed to VCAT, subclause (3) confers on the President of VCAT the capacity to elect to be the "relevant head of jurisdiction" in addition to the Chief Judge. Clause 52 provides for a process to declare (or suspend or revoke a declaration) that a person is a vexatious complainant. Any complaint made by a person who is, or becomes, a "vexatious complainant" within the meaning of the clause 3(1) definition of that expression is subject to automatic dismissal under clause 36(1)(d). 35

 


 

Clause 53 provides for investigations into multiple complaints, Part 4 referrals or health requests by the Commission, investigating panel or investigator. The discretion under clause 53 may, for example, be exercised where two or more matters involving different officers raise substantially similar allegations of fact that are best resolved jointly. Example A complaint relates to the conduct of an appeal before a bench constituted by three judges. As the allegations relate to how the three judges acted when entertaining the appeal, the three complaints may be jointly investigated under clause 53. Subclauses (2) and (3) make provision, respectively, for joint investigations into the conduct of multiple judicial officers, or multiple judicial registrars and VCAT officers. While there is no express statutory authority for the consolidation of investigations involving both judicial and non- judicial officers, nothing in the Bill is intended to prevent cooperation between an investigator and an investigating panel carrying out parallel investigations concerning the same underlying factual matters. Clause 54 subclause (1) permits the Commission to extend an existing investigation of an officer into matters which have not previously been alleged in a complaint, Part 4 referral or health request. The discretion under subclause (1) may be exercised where a new matter arises in the course of the investigation which independently could be the subject of a Part 4 referral. Subclause (2) permits the Commission to initiate a new investigation against an officer not currently the subject of an investigation. The discretion under subclause (2) may be exercised where a new matter arises in the course of the investigation which involves another officer. Subclause (3) provides that an investigation into a new officer under subclause (2) it is to be treated as the initiation of a Part 4 referral under clause 29. The effect is that the subject officer is entitled to the same procedural protections, and may raise the same objections, as any other officer subject to a Part 4 referral. 36

 


 

Clause 55 provides for the adjournment of an investigation of a complaint, Part 4 referral or health request by the Commission in certain circumstances. Where an officer is stood down under Division 4 of Part 4, care would need to be exercised to ensure that the substantive effect of any adjournment is not the de facto removal of an officer for an effectively indefinite period. Clause 56 provides for the further powers of the Commission in relation to its complaints functions. Subclause (1) authorises the Commission to request information and adopt procedures that will assist it in exercising its functions expediently. Subclause (2)(a) requires that the Commission comply with the rules of procedural fairness when exercising its functions. Subclause (2)(b) requires the Commission to act expeditiously and informally. The processes before the Commission will not be conducted with the formality of court or formal disciplinary decisions, and it is anticipated that primary fact finding functions will be performed through employees or delegates, or otherwise decided on the papers. Formalised processes with oral hearings would be a disproportionate response to matters that do not warrant consideration of removal. Subclause (2)(c) provides that, where reasonably practicable, the Commission must ensure that an investigation is conducted confidentially. It will not be "reasonably practicable" to ensure confidentiality where this may impair a proper investigation of the matter. The Commission should not, therefore, refrain from speaking to potential witnesses or other individuals due to confidentiality concerns where such discussions may inform the investigation. Subclause (2)(c) is directed to gratuitous disclosure of the existence of an investigation which is unconnected to a thorough and otherwise proper investigation of the merits of the matter. 37

 


 

PART 5--FURTHER INVESTIGATION OF JUDICIAL OFFICERS Division 1--Referrals of complaints or Part 4 referrals Clause 57 provides in subclause (1)(a) that, if the Commission has decided to proceed with an investigation under clause 38(1), the Commission may refer a complaint or Part 4 referral about a judicial officer to an investigating panel. A referral under subclause (1)(a) may be made where the Commission is satisfied that there are reasonable grounds for a panel to investigate whether facts exist that could amount to proved misbehaviour or incapacity such as to warrant the removal of the officer by parliament under Part IIIAA of the Constitution Act 1975. The Commission may, under subclause (1)(a), make a preliminary assessment of the available evidence and consider-- · whether the matters alleged, if proven, would be of sufficient seriousness to justify potential parliamentary removal; and · whether the allegations are sufficiently cogent, or are otherwise sufficiently supported by the available evidence, to justify the impact on the reputation of, and other adverse effects on, the judicial officer that may result from a referral to an investigating panel. Subclause (1)(b) provides that in any other case, the Commission must decide whether-- · the matter is substantiated (in which case, it is to be referred to the relevant head of jurisdiction); · the matter has not been substantiated (in which case it is to be dismissed); or · the matter should be dismissed on any of the grounds set out in clause 36. A decision to refer a matter to an investigating panel or relevant head of jurisdiction under clause 57 may only be made after notice and an opportunity to be heard has been provided to the subject officer under subclause (2). 38

 


 

The notice provided under subclause (2) could be provided to the officer-- · after the Commission has decided to proceed with an investigation under clause 38(1); or · as part of the notice that is provided under clause 38(2) (i.e. there could be one notice that complies with the requirements under clauses 38(2) and 57(2)); or · after notice has been served under clause 38(2), but before the Commission has made a decision under clause 38(1). Paragraph (2)(d) provides an opportunity to provide "written submissions". The expression is used in its broadest sense and encompasses written material such as sworn or un-sworn witness statements. Clause 58 relates to processes for advising an officer, any relevant head of jurisdiction, and a complainant of decisions to dismiss a matter, or refer a matter to a head of jurisdiction. Subclauses (2) and (4) provide, respectively, for the complainant to be advised of the outcome of the matter, and the reasons for the decision, where a matter has been-- · substantiated and referred to a head of jurisdiction without recommendations (cases involving recommendations are dealt with under clause 68); or · not substantiated, or dismissed for any other reason. Particular details of the information in the report or the outline of why the Commission made the decision must be disclosed to the complainant unless disclosure would be contrary to the public interest having regard to a range of specified factors. These factors are-- Privacy The Commission must consider the impact of disclosure on the legitimate expectations of privacy held by any person, including (but not limited to) the privacy of the judicial officer. This factor will have greater weight where the matter relates to activities in the officer's private life, or involve health matters, as opposed to instances where the conduct relates to on-bench misbehaviour. 39

 


 

Accountability and transparency To protect judicial independence and to avoid unwarranted interference with the judicial process, the deliberations of the Commission are necessarily confidential and are controlled by judicial officers who may be closely connected with the officers subject to investigation. There is accordingly a danger that the Commission may be regarded as conducting proceedings in such a way as to conceal the misbehaviour of colleagues. The provision of information regarding the findings of the Commission is an important aspect of the "open justice" principle and effectively rebuts any suggestion of an improperly close relationship with a subject officer. Disruption and loss of judicial authority The principle role of counselling, or other remedial steps taken under the Bill, is to remind a judicial office holder of expected standards of behaviour and to prevent further incidents from occurring. The aim is not public chastisement or reprimand. In some instances, the disclosure of adverse detail relating to a substantiated complaint or Part 4 referral may undermine a judge's authority when hearing cases, or otherwise cause disruption to the proper administration of justice, for example, in the form of increased apprehended bias applications or appeals. The Commission may have regard to the potentially adverse impacts of disclosure to a complainant (and through that complainant, the public at large), to the extent that such disclosure may adversely impact on the authority of a judge and their capacity to adjudicate. However, in cases where substandard judicial conduct is (or may become) the subject of negative public debate or adverse comment by appellate courts, any loss of perceived judicial authority may arise quite separately from any disclosure made by the Commission. In this regard, while a "counselled" or chastised judge may be a weakened judge, so too is a judge who is incompetent, incapacitated through illness, or who otherwise acts contrary to the public's necessarily high expectations of persons in a position of public trust. 40

 


 

In such cases, the Commission must assess the true adverse impact of any disclosure where the principle harm to the public standing of the officer may result from the improper actions of the subject officer, and not the perfectly proper actions of the Commission to address such conduct. In any case, disclosure may positively impact on the public standing of a particular officer, whether in the immediate or longer term. An example would be where, as a result of an investigation, the medical causes for poor performance are identified and remedied. Independence and public confidence in the judiciary Persons who voluntarily accept public office are accountable for how they conduct themselves in the exercise of their official functions. In the usual course, if improper conduct of any officer holder (whether judicial or not) has resulted in appreciable or material harm to a member of the community, the appropriate response is acknowledgement of any wrongdoing and the taking of remedial steps. The fact that the public may be ignorant of the nature or extent of wrongdoing should not encourage the Commission to withhold details of proven instances of poor judicial behaviour, even where the effect of concealment is the maintenance of public confidence in the relevant court in the shorter term. This is because the concealment of wrongdoing by the judiciary to the apparent advantage of one of its members presents clear risks to the moral authority of the judiciary if the act of concealment ever becomes known. Even in cases where proven instances of misbehaviour or incapacity could be withheld indefinitely, public confidence in the moral authority of the judiciary as a whole is secured over the longer term by it publicly ensuring the professionalism and personal integrity of its membership. Any such public acknowledgement of substandard conduct may, admittedly, cause short-term discomfort to both the subject officer and their judicial colleagues. However, public confidence in the judiciary as a whole may be more severely impaired by its collective silence when faced with the behaviour of one of its members which is harmful both to persons before the Courts and to respect for the judiciary as an institution. 41

 


 

Public confidence in the judiciary as a whole is a central component of judicial independence. Only a court system which commands the public's trust in its authority to adjudicate impartially and with integrity can be regarded as both effective and independent of external influence. Accordingly, the Commission must assess whether its failure to disclose information about a substantiated matter would undermine the collective authority of the judiciary. Clause 59 provides for the Commission to refer a matter to a relevant head of jurisdiction with recommendations as to how to deal with the matter. The relevant head of jurisdiction must have regard to any recommendations. Such recommendations are non-binding. Any recommendation of the Commission under subclause (1) to a relevant head of jurisdiction may not authorise a course of action which is otherwise beyond the jurisdictional powers and authorities of a head of jurisdiction. Example The Commission cannot recommend that a head of jurisdiction indefinitely stand down an officer from all of their functions in instances where this is not expressly authorised by Division 4 of Part 4. Clause 60 imposes a duty on the Commission to provide certain reports to the Attorney-General which result from Part 4 referrals he or she, or his or her predecessor, initiated. The reference to findings includes a reference to the dismissal of matters and the holding of opinions. The provision of information to the Attorney-General is warranted because the Attorney-General initiated the matter to fulfil his or her official responsibilities as first law officer. Division 2--Conduct of investigations Clause 61 empowers an investigating panel to determine its own procedure in the conduct of an investigation where a health request, complaint or Part 4 referral has been referred to it. The decision to hold a hearing will be informed by the principles of procedural fairness. To dispense with an oral hearing is not to dispense with the requirements of a fair hearing--in cases where a hearing is not conducted, the decision will be made on the papers after a 42

 


 

reasonable opportunity to present written evidence or other materials has been provided to potentially adversely impacted persons. A hearing could be dispensed with where it is clear that an oral hearing would not assist the investigating panel to resolve contested questions of fact. Example A judge is comatose and has no prospects of recovery. The investigating panel may conclude that an oral hearing would serve no purpose, given the fact that the judicial officer cannot adequately participate in that process and that an oral hearing would, as a consequence, not valuably inform its deliberations based on written evidence and submissions. Clause 62 sets out procedural requirements in cases involving oral hearings and hearings on the papers. A notice could be "given" to an officer through postal service or in person. Matters relevant to service, and the calculation of times of deemed receipt, are currently set out in section 49 of the Interpretation of Legislation Act 1984. Clause 63 provides in subclause (1) for certain procedural matters that apply to an investigating panel when it conducts hearings. The examples listed are not exhaustive statements of relevant powers or limitations. Subclauses (2) and (3) require hearings to be closed to the public unless the investigating panel is satisfied that the opening of the hearing, or parts of the hearing, would facilitate the conduct of the hearing or would otherwise be in the public interest. Clause 64 requires the investigating panel to provide a judicial officer an opportunity to make a written submission if it is not proceeding with a hearing. Clause 65 outlines the decision-making powers of an investigating panel. Subclause (1) provides that the panel must dismiss the matter if the panel is of the opinion that it has not been substantiated. The panel may-- · dismiss the matter in whole or part on any of the grounds set out in clause 36(1)(a) to (f); 43

 


 

· report to the Governor in Council where a matter is substantiated and facts exist that could warrant consideration of removal on the grounds of proved misbehaviour or incapacity; or · report to the relevant head of jurisdiction where a matter is substantiated, but where the matter does not warrant consideration of removal on the grounds of proved misbehaviour or incapacity. Clause 36(1)(g) relates to the dismissal of a matter where investigation, or further investigation, is not warranted in the circumstances. The exclusion of clause 36(1)(g) from the powers of the panel under subclause (1)(a) reflects the fact that the Commission has already made a determination that facts exist which warrant investigation. It is not open to the panel to substitute its own judgment on this matter. Where the panel concludes an investigation and makes primary conclusions of fact in relation to the existence of proven misbehaviour or incapacity, subclauses (1)(a) and (b) do not confer a discretion at large to dismiss a matter. The power to dismiss is limited to situations where the matter is not substantiated or the grounds set out in clauses 36(1)(a) to (f). The primary role of the panel is fact finding and not the making of qualitative assessments as to whether a judicial officer should remain in office notwithstanding a proven instance of misbehaviour or incapacity of sufficient seriousness to warrant parliamentary consideration for removal. Accordingly, where satisfied that misbehaviour or incapacity has been proved, the panel must refer the matter to Parliament or a relevant head of jurisdiction, subject to precise and narrowly defined exceptions. Example The investigating panel establishes that a judicial officer is an alcoholic, and sentenced a person while intoxicated on at least one occasion. The officer has demonstrated a willingness to seek assistance and is responding well to treatment. If the panel forms the opinion that facts exist that could amount to proved misbehaviour or incapacity such as to warrant the removal of the officer from office, the panel must provide the report to the Governor in Council. Although the panel must 44

 


 

report its findings on all relevant circumstances, including mitigating factors, the panel must exercise caution before making statements which could pre-judge the decision which Parliament may reach. The panel should not substitute its judgment with that of Parliament regarding the future of the judicial officer. Subclause (2) provides, respectively, for the complainant to be advised of the outcome of the matter, and the reasons for the decision, where a matter has been-- · dismissed on a ground specified in clause 36(1)(a) to (f); or · not substantiated and, accordingly, dismissed. Particular details of the outcome must be disclosed to the complainant unless disclosure would be contrary to the public interest having regard to a range of specified factors. The general balancing exercise required by subclause (3) is discussed above in relation to clause 58(5). However, it will only be in rare cases that a decision to dismiss a complaint will contain information relating to the substandard conduct of an officer which may damage that officer's public standing and authority to adjudicate. Disclosure in relation to decisions made under subclause (1)(c) is governed by clauses 66(2) and (3). Disclosure in relation to decisions under subclause (1)(d) is governed by clauses 67(2), (3), and (4) and 68(3) and (4). Clause 66 provides for reports relating to substantiated matters which warrant consideration for parliamentary removal to be tabled in Parliament. Clause 67 provides, in subclauses (1) and (2), for the provision of a report to the relevant head of jurisdiction and a subject officer where the investigating panel has made a finding that the matter is substantiated, but is not of sufficient seriousness to warrant parliamentary consideration of removal. Subclause (3) provides for the complainant to be advised of the outcome of the matter where a matter has been-- · substantiated under subclause 65(1)(d) and referred to the relevant head of jurisdiction; and 45

 


 

· recommendations have not been made under subclause (5) (disclosure in cases where there are recommendations is governed by clauses 68(3) and (4)). Particular details of the outcome must be disclosed to the complainant unless disclosure would be contrary to the public interest having regard to a range of specified factors. The general balancing exercise required by subclause (4) is discussed above in relation to clause 58(5). Subclauses (5) and (6) provide for the panel to make recommendations to a relevant head of jurisdiction. The panel's discretion to make recommendations operates in the same manner as the discretion of the Commission under clause 59. Clause 68 provides for a process for a relevant head of jurisdiction to give effect to recommendations of the Commission or investigating panel made under clauses 59(1) and 67(5). Clause 68 does not confer any powers on a head of jurisdiction in addition to those which are otherwise exercisable by that officer, whether as an implied incident of their senior position or under statute. As a head of jurisdiction is not bound to comply with a recommendation, the head may exercise a combination of the powers outlined in section 68 or any other powers in substitution for any recommended course of action. Example The panel recommends that an officer be counselled due to a failure to adhere to appropriate standards governing conflicts of interest. The relevant head of jurisdiction instead directs the officer to undertake relevant ethics training with the Educational Division of the Commission in addition to counselling. The expression "counselling" in subclause (1)(a) is not defined, but generally connotes informal and constructive discussions and guidance which is principally directed to arriving at mutually agreed solutions to address problem conduct. In appropriate cases, "counselling" may encompass the giving of firm advice or recommendations which are made with the expectation that they will be followed. 46

 


 

Subclause (2) provides for the relevant head of jurisdiction to report back to the Commission on the implementation of the Commission or panel's report and recommendations. Subclause (2)(d) requires the head to report back in relation to the "steps taken" by the judicial officer. Any "steps taken" by an officer may occur over an extended period. The head of jurisdiction may, in deciding when to report back to the Commission, make a practical and realistic assessment of the information to be reported, which would include reporting on the steps the officer intends to take in the future. Example An officer is directed to undertake professional training which, when taken part time, will take 18 months to satisfactorily complete. The relevant head of jurisdiction may decide, upon the commencement of that training, to report back to the Commission that the judge has agreed to undergo training for the next 18 months. The head of jurisdiction is not required to wait for the satisfactory completion of the training. Subclauses (3) and (4) provide for the complainant to be advised of the outcome of the matter where a matter has been-- · substantiated and referred to the relevant head of jurisdiction; and · recommendations have been made to a relevant head of jurisdiction. Particular details of the outcome must be disclosed to the complainant unless disclosure would be contrary to the public interest having regard to a range of specified factors. The general balancing exercise required by subclause (4) is discussed above in relation to clause 58(5). Division 3--Panel's powers to require medical examination Clause 69 provides for an investigating panel to require a medical examination if reasonably satisfied that an officer may be suffering from an impairment, disability, illness or condition that may "significantly" affect that officer's functions as a judicial officer. The expression "impairment, disability, illness or condition" is a very broad composite expression that would encompass total or partial loss of a bodily function, the total or partial loss of a part 47

 


 

of the body, a disease, a malfunction of a part of the body, a mental or psychological disease or disorder and an addiction. The expression "significant" relates to the effect that the impairment, disability, illness or condition has on the officer's performance of his or her functions. Subclause (2) provides for the giving of notice and an opportunity for the officer to respond. The references to functions in this clause have the extended meaning in accordance with clauses 3(2)(a), (b) and (c). Clause 70 provides in subclause (1)(a) for the panel to request that an officer undergo a medical examination. A "medical examination" does not include a range of invasive medical tests, such as blood sampling. Such tests may only be required by a registered medical practitioner under clause 72. Subclause (1)(b) empowers the panel to request the production of copies of reports of any previous medical examinations or medical tests that may be relevant. Pursuant to clause 118, documents may be requested despite their tendency to incriminate the officer. Clause 71 provides a lawful obligation to comply with a request under clause 70 to undergo a medical examination or produce documents. Pursuant to clause 118, this obligation would apply even if the examination or documents may incriminate the officer. Clause 72 provides for the conduct of a medical examination. Subclause (1)(a) provides that a registered medical practitioner may require the production of relevant documents. Subclause (1)(b) provides that the registered medical practitioner may request the officer to-- · undergo another medical examination (whether performed by that registered medical practitioner or another); or · undergo a specified medical test (whether performed by that registered medical practitioner or another). Subclause (2) provides a lawful obligation to comply with a request to undergo the medical examination or produce documents requested under subclause (1). Pursuant to clause 48

 


 

118, this obligation would apply even if the examination or documents may incriminate the officer. Clause 73 provides in subclause (1) for any medical practitioner undertaking a medical examination under clause 70 to provide a report of their findings to the investigating panel, notwithstanding doctor/patient confidentiality. Subclause (2) provides for written notice to be provided to the officer who was subject to the examination. While an officer cannot choose the registered medical practitioner who will perform the medical examination, the officer may provide the panel with alternative reports from a medical practitioner of his or her choice under subclause (2)(c). The references to "functions" in this clause have the expanded meaning in accordance with clauses 3(2)(a), (b) and (c). Clause 74 provides that the outcome of a medical examination, and additional material provided under the Division, must be considered by the panel as part of its general deliberations under clause 65. Division 4--General powers of investigating panels Clause 75 provides that an investigating panel may exercise a range of powers under sections 17, 18, 19, 19A, 19B(2), (2A), (3), (4), 19C, 19D, 19E, 20, 20A, 21 and 21A of the Evidence (Miscellaneous Provisions) Act 1958 as if the panel were a Royal Commission. Sections 19C and 19D of the Evidence (Miscellaneous Provisions) Act 1958 currently provide that "despite anything to the contrary in this Division" a body empowered under that Division may compel certain types of information notwithstanding any potential assertion of legal professional privilege or the privilege against self-incrimination. Sections 19C and 19D expressly expand upon the express limitation imposed by section 17 of the Evidence (Miscellaneous Provisions) Act 1958 which allow persons to assert the two relevant privileges. Accordingly, the powers of the investigating panel under clause 75 extend to the compulsion of material notwithstanding the assertion of any of the two named privileges. The use of such material in subsequent criminal and civil proceedings is governed by sections 19C and 19D of the Evidence (Miscellaneous Provisions) Act 1958. 49

 


 

Subclauses (2) and (3) provide that material may be compelled notwithstanding the prohibition of disclosure provided "by or under any Act". The meaning of the word "Act" in subclauses (2) and (3) would be determined in accordance with section 38 of the Interpretation of Legislation Act 1984 and be an Act of the Victorian Parliament. Subclauses (2) and (3) therefore do not apply to Commonwealth or interstate laws. Clause 76 permits, in subclause (1), for the panel to extend an existing investigation of an officer into matters which have not previously been alleged in a complaint or Part 4 referral (including a health request that is deemed to be a Part 4 referral under clause 44). The discretion under subclause (1) may be exercised where a new matter arises in the course of the investigation which independently could be the subject of a Part 4 referral. Subclause (2) permits the panel to initiate a new investigation against an officer not currently the subject of an investigation. The discretion under subclause (2) may be exercised where a new matter arises in the course of the investigation which involves another officer. While not authorising an "own motion" power to investigate all aspects of the personal and professional lives of the judiciary, where an existing investigation uncovers material which is credible and bears on an officer's fitness to exercise official functions, such material should be investigated. Subclause (3) provides that an investigation into a new officer under subclause (2) it is to be treated as the initiation of a Part 4 referral under clause 29. The effect is that the subject officer is entitled to the same procedural protections, and may raise the same objections, as any other officer subject to a Part 4 referral. Although the investigating panel should comply with the requirements under clause 31, the Commission could investigate the referral pursuant to clause 35(2) even if there was not substantial compliance with the requirements of clause 31. Clause 77 provides for the adjournment of an investigation by the panel in certain circumstances. Where an officer is stood down under Division 4 of Part 4, care would need to be exercised to ensure that the adjournment does not effectively result in the de facto removal of an officer for an indefinite period. 50

 


 

Clause 78 provides that an investigating panel may make a majority decision, may produce a majority and minority report, and provides for the circumstances where one member can no longer act. Division 5--Establishment of investigating panels Clause 79 allows the Commission to establish an investigating panel to investigate a complaint or Part 4 referral (including a health request that is deemed to be a Part 4 referral under clause 44). Clause 80 describes the membership of an investigating panel. One member of the panel must be chosen from a pool of persons nominated by Parliament under clause 84. The other two members must be serving or former judicial officers, from a range of courts. Clause 81 provides for the selection of a chairperson. Clause 82 restricts the Commission's power to appoint certain persons as members of an investigating panel. The Commission must not appoint-- · a member of the Board; or · a person who is a judicial officer of the same court as the subject officer; or · any person who does not consent. The Commission must, under subclause (2)(b), ensure as far as "reasonably practicable" that the judicial members are, or were, members of a court which is at the same level or higher in the judicial hierarchy. For the purpose of this provision-- · a magistrates' court of any State or Territory would be the same level as the (Victorian) Magistrates' Court, Children's Court or Coroners Court; and · the District Court of New South Wales would be "at the same level" as the County Court of Victoria; and · a superior court of any State or Territory or the Commonwealth (other than the High Court) would be at the same level as the Supreme Court of Victoria. 51

 


 

For the purposes of clause 82(2)(b), the "court" of the officer who is the subject of the complaint or referral would be determined as follows-- · if the person was an Appeal Judge, the person is from the Supreme Court of Victoria (and not "Court of Appeal"--which is a Division of the Supreme Court); and · the State Coroner, President of the Children's Court and Vice-Presidents of VCAT (who are judges of the County Court) are members of the County Court (and not of the Coroners Court, Children's Court or VCAT). There may be instances, however, where a suitable candidate who otherwise demonstrates the necessary qualities for appointment cannot be appointed within the timeframes necessary for a timely disposition of the inquiry. In such cases, it may not be "reasonably practicable" to appoint a person from the same, or higher, court. Clause 83 provides that the Commission must select the non-judicial member of the investigating panel from a pool of four persons nominated by Parliament. Clause 84 prescribes the process for establishing a pool of four people who may be appointed to an investigating panel. Members of the pool may not be Australian lawyers, within the meaning of the clause 3(1) definition. Subclauses (2), (3), (4), (5) and (6) set out a process where-- · a nominee put forward by the Legislative Assembly may be appointed notwithstanding the rejection of that candidate by the Legislative Council; or · a substitute nominee put forward by the Legislative Council following its rejection of a suggested candidate nominated by the Legislative Assembly may be confirmed by the Legislative Assembly. Clause 85 provides for the conditions on which a person is a member of the pool, including provision for the length of appointment and applicable salary and allowances. Subclause (2) refers to situations where the nomination of a member of the pool "expires or ceases". This expression includes the resignation or removal of the member from the pool under clause 86. 52

 


 

Clause 86 provides the circumstances in which a member of the pool may be removed from the pool, including where the member becomes "insolvent under administration" or is found guilty of indictable offence. The term "insolvent under administration" is currently defined in section 38 of the Interpretation of Legislation Act 1984. Currently, the reference to "an indictable offence", in relation to offences under Victorian law, would be read having regard to section 112 of the Sentencing Act 1991, section 2A of the Wrongs Act 1958 and section 2B of the Crimes Act 1958. For an offence under Commonwealth law, "an indictable offence" would be read having regard to section 4G of the Crimes Act 1914 of the Commonwealth. Clause 87 provides that acts or decisions of the panel are valid despite a range of potential technical defects and empowers the panel to correct any record of a decision in certain circumstances. For instance, if there was a defect in the appointment of a person to be a member of the pool under clause 84 who constituted an investigating panel, this defect would not invalidate the decision of the panel. An act or decision includes the holding of an opinion, a referral, a finding and a recommendation by the panel. PART 6--FURTHER INVESTIGATION OF JUDICIAL REGISTRARS AND VCAT OFFICERS Division 1--Referrals of complaints or Part 4 referrals Clause 88 provides in subclause (1)(a) that, if the Commission has decided to proceed with an investigation under clause 38(1), the Commission may refer a complaint or Part 4 referral about a judicial registrar or VCAT officer to an investigator. A referral under subclause (1)(a) may be made where the Commission is satisfied that there are reasonable grounds for a investigator to investigate whether facts exist that could amount to proved misbehaviour or incapacity such as to warrant the removal of the officer by the Governor in Council under clause 97. The Commission may, under subclause (1)(a), make a preliminary assessment of the available evidence and consider-- · whether the matters alleged, if proven, would be of sufficient seriousness to justify potential removal; and 53

 


 

· whether the allegations are sufficiently cogent, or are otherwise sufficiently supported by the available evidence, to justify the impact on the reputation of, and other adverse effects on, an officer that may result from a referral to an investigator. Subclause (1)(b) provides that in any other case, the Commission must decide whether-- · the matter is substantiated (in which case, it is to be referred to the relevant head of jurisdiction); · the matter has not been substantiated (in which case it is to be dismissed); or · the matter should be dismissed on any of the grounds set out in clause 36(1)(a) to (f). A decision to refer a matter to an investigator or relevant head of jurisdiction under clause 88 may only be made after notice and an opportunity to be heard has been provided to the subject officer under subclause (2). The notice provided under subclause (2) could be provided to the officer-- · after the Commission has decided to proceed with an investigation under clause 38(1); or · as part of the notice that is provided under clause 38(2) (i.e. there could be one notice that complies with the requirements under clauses 38(2) and 88(2)); or · after notice has been served under clause 38(2), but before the Commission has made a decision under clause 38(1). Subclause (2)(d) provides an opportunity to provide "written submissions". The expression is used in its broadest sense and encompasses written material such as sworn or un-sworn witness statements. Subclause (4) applies in cases where a matter is initiated as a complaint or Part 4 referral, or is deemed to be initiated as such under Division 3 of Part 4. Subclause (4) provides that the Commission must specify whether the investigator has powers under Division 3 for that investigation. 54

 


 

Subclause (4) does not apply to matters which are initiated as a health request under Division 3 of Part 4 and which are referred to an investigator under clause 44(2)(c). In such cases, clause 100(3)(b) provides that the investigator may automatically exercise any of the powers relating to medical examinations under Division 3 of Part 6. Clause 89 relates to processes for advising an officer, any relevant head of jurisdiction, and a complainant of decisions to dismiss a matter, or refer a matter to a head of jurisdiction. Subclauses (2) and (4) provide, respectively, for the complainant to be advised of the outcome of the matter, and the reasons for the decision, where a matter has been-- · substantiated and referred to a head of jurisdiction without recommendations (cases involving recommendations are dealt with under clause 99); or · not substantiated or dismissed for any other reason. Particular details of the outcome must be disclosed to the complainant unless disclosure would be contrary to the public interest having regard to a range of specified factors. The general balancing exercise required by subclause (5) is discussed above in relation to clause 58(5). Clause 90 provides for the Commission to refer a matter to a relevant head of jurisdiction with recommendations as to how to deal with the matter. The relevant head of jurisdiction must have regard to the recommendations. Such recommendations are non-binding. Any recommendation of the Commission under subclause (1) to a relevant head of jurisdiction does not authorise a course of action which is otherwise beyond the jurisdictional powers and authorities of a head of jurisdiction. Example The Commission cannot recommend that a head of jurisdiction indefinitely stand down an officer from all of their functions in instances where this is not expressly authorised by Division 4 of Part 4. 55

 


 

Clause 91 imposes a duty on the Commission to provide certain reports to the Attorney-General which result from Part 4 referrals he or she, or his or her predecessor, initiated. The provision of information to the Attorney-General is warranted because the Attorney-General initiated the matter to fulfil his or her official responsibilities as first law officer. Division 2--Conduct of investigations Clause 92 empowers an investigator to determine his or her own procedure in the conduct of an investigation where a health request, complaint or Part 4 referral has been referred to him or her. The decision to hold a hearing will be informed by the principles of procedural fairness. To dispense with an oral hearing is not to dispense with the requirements of a fair hearing--in cases where a hearing is not conducted, the decision will be made on the papers after a reasonable opportunity to present written evidence or other materials has been provided to potentially adversely impacted parties. A hearing could be dispensed with where it is clear that an oral hearing would not assist the Commission to resolve contested questions of fact. Example A VCAT office is comatose. The investigator may conclude that an oral hearing would serve no purpose, given the fact that the officer cannot adequately participate in that process and that an oral hearing would, as a consequence, not valuably inform its deliberations based on written evidence and submissions. Clause 93 sets out procedural requirements in cases involving oral hearings and hearings on the papers. A notice could be "given" to an officer through postal service or in person. Matters relevant to proof of service, and the calculation of times of deemed receipt, are currently set out in section 49 of the Interpretation of Legislation Act 1984. Clause 94 provides in subclause (1) for procedural matters that apply to an investigator when he or she conducts hearings. The examples listed are not exclusive statements of relevant powers or limitations. 56

 


 

Subclauses (2) and (3) require hearings to be closed to the public unless the investigator is satisfied that the opening of the hearing, or parts of the hearing, would facilitate the conduct of the hearing or would otherwise be in the public interest. Clause 95 requires the investigator to provide a subject officer with an opportunity to make a written submission if he or she is not proceeding with a hearing. Clause 96 outlines the decision-making powers of an investigator. Subclause (1) provides that the investigator must dismiss the matter if he or she has not substantiated the matter. The investigator may-- · dismiss the matter in whole or part on any of the grounds set out in clauses 36(1)(a) to (f); · report to the Attorney-General where a matter is substantiated and facts exist that could warrant consideration for removal on the grounds of proved misbehaviour or incapacity; or · report to the relevant head of jurisdiction where a matter is substantiated, but where the matter does not warrant consideration for removal on the grounds of proved misbehaviour or incapacity. Clause 36(1)(g) relates to the dismissal of a matter where investigation, or further investigation, is not warranted in the circumstances. The exclusion of clause 36(1)(g) from the powers of an investigator under clause 96(1)(a) reflects the fact that the Commission has already made a determination that facts exist which warrant investigation. It is not open to the investigator to substitute his or her own judgment on this matter. Where the investigator concludes an investigation and makes primary conclusions of fact in relation to the existence of proven misbehaviour or incapacity, subclause (1)(a) does not confer on the investigator a discretion at large to dismiss a matter. The primary role of the investigator is fact finding and not the making of qualitative assessments as to whether a judicial officer should remain in office notwithstanding a proven instance of misbehaviour or incapacity of sufficient seriousness to warrant consideration for removal. 57

 


 

Accordingly, where satisfied that misbehaviour or incapacity has been proven, the investigator must refer the matter to the Attorney-General or a relevant head of jurisdiction, subject to precise and narrowly defined exceptions. Subclause (2) provides, respectively, for the complainant to be advised of the outcome of the matter, and the reasons for the decision, where a matter has been-- · dismissed on a ground specified in clause 36(1)(a) to (f); or · not substantiated and, accordingly, dismissed. Subclauses (2) and (3) provide that the outcome of such matters are always to be released to a complainant. Particular details of the outcome must be disclosed unless disclosure would be contrary to the public interest having regard to a range of specified factors. The general balancing exercise required by subclause (4) is discussed above in relation to clause 58(5). However, it will only be in rare cases that a decision to dismiss a complaint will contain information relating to the substandard conduct of an officer which may damage that officer's public standing and authority to adjudicate. Disclosure in relation to decisions made under paragraph (1)(c) is governed by clause 97(2). Disclosure in relation to decisions under paragraph (1)(d) is governed by clauses 98(2), (3) and (4) and 99(3) and (4). Clause 97 provides for the removal of judicial registrars and VCAT officers from office upon receipt by the Attorney-General of an adverse report of an investigator under clause 96(1)(c). The Attorney-General cannot recommend removal unless the "relevant head of jurisdiction" is consulted. The expression "relevant head of jurisdiction" is defined in clause 3(1). While the expression "consult" connotes a genuine deliberative process, the Attorney-General is not bound by any recommendation of the relevant head of jurisdiction and is required to exercise his or her own independent judgment. 58

 


 

Clause 98 provides, in subclauses (1) and (2), for the provision of a report to the relevant head of jurisdiction and a subject officer where the investigator has made a finding that the matter is substantiated, but is not of sufficient seriousness to warrant consideration for removal under clause 97. Subclause (3) provides for the complainant to be advised of the outcome of the matter where a matter has been-- · substantiated and referred to the relevant head of jurisdiction; and · recommendations have not been made under subclause (5) (disclosure in such cases is governed by clause 99(3)). Particular details of the outcome must be disclosed to the complainant unless disclosure would be contrary to the public interest having regard to a range of specified factors. The general balancing exercise required by subclause (3) is discussed above in relation to clause 58(5). Subclauses (5) and (6) provide for the investigator to make recommendations to a relevant head of jurisdiction. The investigator's ability to make recommendations operates in the same manner as the ability of the Commission under clause 59. Clause 99 provides for a process for a relevant head of jurisdiction to give effect to recommendations arising out of reports by the Commission or investigator under clauses 90(1) and 98(5). Clause 99 does not confer any powers on a head of jurisdiction in addition to those which are otherwise exercisable by that officer, whether as an implied incident of their senior position or under statute. As a head of jurisdiction is not bound to comply with a recommendation, the head may exercise a combination of the powers outlined in clause 99 in substitution for any recommended course of action. Example The investigator recommends that an officer be counselled due to a failure to adhere to appropriate standards governing conflicts of interest. 59

 


 

The relevant head of jurisdiction instead directs the officer to undertake relevant ethics training with the Educational Division of the Commission in addition to counselling. The expression "counselling" in subclause (1)(a) is not defined, but generally connotes informal and constructive discussions and guidance which is principally directed to arriving at mutually agreed upon solutions to problem conduct. In appropriate cases, "counselling" may encompass the giving of firm advice or recommendations which are made with the expectation that they will be followed. Subclause (2) provides for the relevant head of jurisdiction to report back to the Commission on the implementation of the Commission or the investigator's report and recommendations. Subclause (2)(d) requires the head to report back in relation to the "steps taken" by the judicial registrar or VCAT officer. Any "steps taken" by an officer may occur over an extended period. The head of jurisdiction may, in deciding when to report back, make a practical and realistic assessment which would include reporting on the steps the officer intends to take in the future. Example An officer is directed to undertake professional training which, when taken part time, will take 18 months to satisfactorily complete. The relevant head of jurisdiction may decide, upon the commencement of that training, to report back to the Commission that the judicial registrar or VCAT officer has agreed to undergo training for the next 18 months. The head of jurisdiction is not required to wait for the satisfactory completion of the training. Subclause (3) provides for the complainant to be advised of the outcome of the matter where a matter has been-- · substantiated and referred to the relevant head of jurisdiction; and · recommendations have been made to a relevant head of jurisdiction. Particular details of the outcome must be disclosed to the complainant unless disclosure would be contrary to the public interest having regard to a range of specified factors. The general balancing exercise required by subclause (4) is discussed above in relation to clause 58(5). 60

 


 

Division 3--Investigator's powers to require medical examination Clause 100 provides for an investigator to require a medical examination if reasonably satisfied that on officer may be suffering from an impairment, disability, illness or condition that may "significantly" affect that officer's functions as a judicial registrar or VCAT officer. The expression "impairment, disability, illness or condition" is a very broad composite expression that would encompass total or partial loss of a bodily function, the total or partial loss of the use of a part of the body, a disease, a malfunction of a part of the body, a mental or psychological disease or disorder and an addiction (e.g. drug or alcohol addiction). The expression "significant" relates to the effect that the impairment, disability, illness or condition has on the officer's performance of his or her functions. Subclause (2) provides for the giving of notice and an opportunity to respond to the subject officer. The references to functions in this clause have the extended meaning in accordance with clauses 3(2)(a), (b) and (c). Subclause (3) provides that-- · where a matter is initiated as a complaint or Part 4 referral, or is deemed to be initiated as such under Division 3 of Part 4 and is, accordingly, governed by clause 88(4)--an investigator may only exercise powers under Division 3 of Part 6 where expressly authorised by the Commission; and · where a matter is initiated as a health request under Division 3 of Part 4 and is referred to an investigator under clause 44(2)(c)--an investigator may automatically exercise any of the powers relating to medical examinations under Division 3 of Part 6. Clause 101 provides in subclause (1)(a) for an investigator to request that an officer undergo a medical examination. A "medical examination" does not include a range of invasive medical tests, such as blood sampling. Such tests may only be required by a registered medical practitioner under clause 103. Subclause (1)(b) empowers the investigator to request the production of copies of reports of any previous medical examinations that may be relevant. 61

 


 

Pursuant to clause 118, documents may be requested despite their tendency to incriminate the officer. Clause 102 provides a legal obligation for a judicial registrar or VCAT officer to comply with a request under clause 101 to undergo a medical examination or produce documents. Pursuant to clause 118, this obligation applies even if the examination or documents may incriminate the officer. Clause 103 provides for the conduct of a medical examination. Subclause (1)(a) provides that a registered medical practitioner may require the production of relevant documents. Pursuant to clause 118, documents may be requested despite their tendency to incriminate the officer. Subclause (1)(b) provides that the registered medical practitioner may request the officer to-- · undergo another medical examination (whether performed by that registered medical practitioner or another); or · undergo a specified medical test (whether performed by that registered medical practitioner or another). Subclause (2) provides a legal obligation to comply with a request to undergo the medical examination or produce documents requested under subclause (1). Clause 104 provides in subclause (1) for any medical practitioner undertaking a medical examination under section 101 to provide a report of their findings to the investigator, notwithstanding doctor/patient confidentiality. Subclause (2) provides for written notice to be provided to the officer who was subject to the examination. Pursuant to clause 118, this obligation applies even if the examination or documents may incriminate the officer. While an officer cannot choose the registered medical practitioner who will perform the medical examination, the officer may provide the investigator with alternative reports from a medical practitioner of his or her choice under subclause (2)(c). Clause 105 provides that the outcome of a medical examination, and additional material provided under the Division, must be considered by investigator as part of his or her general deliberations under Division 2 of Part 6. 62

 


 

Division 4--General powers of investigators Clause 106 provides that an investigator may exercise a range of powers under sections 17, 18, 19, 19A, 19B(2), (2A), (3), (4), 19C, 19D, 19E, 20, 20A, 21 and 21A of the Evidence (Miscellaneous Provisions) Act 1958 as if he or she were a Royal Commission, provided that the Commission has authorised their exercise under subclause (4). Sections 19C and 19D of the Evidence (Miscellaneous Provisions) Act 1958 currently provide that "despite anything to the contrary in this Division" a body empowered under that Division may compel certain types of information notwithstanding any potential assertion of legal professional privilege or the privilege against self-incrimination. Sections 19C and 19D expressly expand upon the express limitation imposed by section 17 of the Evidence (Miscellaneous Provisions) Act 1958 which allow persons to assert the two relevant privileges. Accordingly, the powers of the investigator under clause 106 extend to the compulsion of material notwithstanding the assertion of any privilege. The use of such material in subsequent criminal and civil proceedings is governed by sections 19C and 19D of the Evidence (Miscellaneous Provisions) Act 1958. Subclauses (2) and (3) provides that material may be compelled notwithstanding the prohibition of disclosure provided "by or under any Act". The meaning of the word "Act" in subclauses (2) and (3) would be determined in accordance with section 38 of the Interpretation of Legislation Act 1984 and be an Act of the Victorian Parliament. Subclauses (2) and (3) therefore do not apply to Commonwealth or interstate laws. Clause 107 permits, in subclause (1), an investigator to extend an existing investigation of an officer into matters which have not previously been alleged in a complaint or Part 4 referral (including a health request that is deemed to be a Part 4 referral under clause 44). The discretion under subclause (1) may be exercised where a new matter arises in the course of the investigation which independently could be the subject of a Part 4 referral. 63

 


 

Subclause (2) permits the investigator to initiate a new investigation against an officer not currently the subject of an investigation. The discretion under subclause (2) may be exercised where a new matter arises in the course of the investigation which involves another officer. While not authorising an "own motion" power to investigate all aspects of the personal and professional lives of the judiciary, judicial registrars and VCAT officers, where an existing investigation uncovers material which is credible and bears on an officer's fitness to exercise official functions, such material should be investigated. Subclause (3) provides that an investigation into a new officer under subclause (2) it is to be treated as the initiation of a Part 4 referral under clause 29. The effect is that the subject officer is entitled to the same procedural protections, and may raise the same objections, as any other officer subject to a Part 4 referral. Although the investigator should comply with the requirements under clause 31, the Commission could investigate the referral pursuant to clause 35(2) even if there was not substantial compliance with the requirements of clause 31. Clause 108 provides for the adjournment of an investigation by an investigator in certain circumstances. Where an officer is stood down under Division 4 of Part 4, care would need to be exercised to ensure that the effect of any adjournment is not the de facto removal of an officer for an effectively indefinite period. Division 5--Appointment of investigators Clause 109 allows the Commission to appoint a person as an investigator from a range of nominated classes. Clause 110 provides that acts or decisions of an investigator are valid despite a range of potential technical defects and empowers the panel to correct any record of a decision in certain circumstances. An act or decision includes the holding of an opinion, a referral, a finding and a recommendation by the panel. 64

 


 

Division 6--Establishment of official committees Clause 111 permits the creation of an official committee. The official committee is not a standing body and is to be constituted on an ad hoc basis to exercise, pursuant to clause 7(2), the powers of the Commission in relation to a matter involving a judicial registrar or VCAT officer. Clause 112 provides for the membership of an official committee. Subclauses (2), (3) and (4) provide for different constitutions depending on whether the officer who is the subject of the relevant complaint, Part 4 referral or health request is the subject of multiple appointments to different courts. Clause 113 provides for the selection of a chairperson. Clause 114 provides, for an abundance of caution, that acts or decisions of an official committee as a delegate of the Commission are valid despite a range of potential technical defects and empowers the panel to correct any record of a decision in certain circumstances. An official committee is a delegate of the Commission and clause 18 also applies to an official committee. An act or decision includes the holding of an opinion, a referral, a finding and a recommendation by the panel. PART 7--GENERAL PROVISIONS Division 1--Provision and confidentiality of information Clause 115 establishes the summary offence of providing information under Parts 4, 5 and 6 that a person knows to be false or misleading, and sets out the relevant penalties. Proceedings for this offence may be commenced within 3 years after the occurrence of the facts alleged. The reference to the provision of false or misleading information to the Commission includes the provision of such material to an official committee, the Chief Executive Officer and any person employed under Part 3 of the Public Administration Act 2004 to assist the Commission in the exercise of its functions. Clause 116 Subclause (1) authorises the extension of an existing investigation into a judicial officer, judicial registrar or VCAT officer to deal with the officer having provided information which the officer believes to be false or misleading in a material particular. 65

 


 

Subclause (2) authorises the initiation under the Bill of an investigation into the conduct of a judicial officer, judicial registrar or VCAT officer who is not already the subject of an investigation under the Bill, where the officer gives information to the Commission that the officer believes to be false or misleading in a material particular. Subclauses (1) and (2) are not intended to limit any separate power of the Commission, investigating panel or investigator-- · under clause 54, 76 or 107 to extend or initiate investigations; or · to investigate a complaint or Part 4 referral that included allegations regarding the provision of false information to the Commission, investigating panel or investigator. Clause 117 prohibits disclosure of information by nominated individuals which is obtained in connection with the performance of the complaint handling functions of the Commission, an investigating panel or an investigator. Subclause (1)(a) provides that disclosure may be made for the purposes of the exercise of the functions of the Commission. Subclause (1)(a) is to be understood broadly to encompass disclosure which has a necessary connection to the investigative or other functions of the Commission. However, subclause (1)(a) is to be read with existing express limitations on disclosure to particular individuals or the public at large in the balance of the Bill, including provisions relating to the confidentiality of investigations under clause 56(2)(c). Subclause (1)(b) provides for disclosure made in accordance with the Bill or a regulation made pursuant to the Bill. Subclause (1)(b) encompasses disclosure authorised or required by a range of clauses, including clause 120. Subclause (1)(c) provides for disclosures otherwise required, authorised or permitted by law. This subclause is based on Health Privacy Principle 2.2(c) in Schedule 1 to the Health Records Act 2001 and applies whether the requirement, authorisation or permission is express or implied. Subclause (3) is included for the abundance of caution and provides for disclosure of information to law enforcement or other regulatory bodies. This subclause is based on the Information Privacy Principle 2.1(g) in Schedule 1 to the Information Privacy Act 2000. Subclause (3) is not intended to limit the scope of subclause (1)(c) in any way. 66

 


 

Subclause (4) provides that, notwithstanding any disclosure permitted under subclause (3), the limitations on the direct use of such material in subsequent criminal or civil proceedings provided by the Evidence (Miscellaneous Provisions) Act 1958 and clause 118 is expressly retained. Clause 118 provides that material may be compelled under the various health examination provisions of the Bill despite the capacity of the material to incriminate the person required to provide the relevant information (which may include information of their personal health status). Clause 118 provides the same limitations on the direct use of such material in subsequent criminal or civil proceedings provided by the Evidence (Miscellaneous Provisions) Act 1958 which apply to material compelled by an investigating panel or investigator under clauses 75 and 106, which are discussed above. Clause 119 provides that the Commission must provide to the Attorney- General any relevant findings, decisions and recommendations which relate to substantiated matters involving judicial officers, judicial registrars and VCAT officers which are not referred to Parliament for consideration of removal. Subclause (2) provides for the Commission to also provide information to the Attorney-General about any report that was provided to a head of jurisdiction, unless disclosure of specific details would be contrary to the public interest having regard to a range of public interest considerations listed in subclause (3). Subclause (3) provides grounds which are of specific relevance to the role of the Attorney-General as first law officer. The Attorney-General is responsible, in a general sense, for the proper administration of justice and must be able to publicly defend the actions of the judiciary on the basis of accurate information. The Attorney-General formulates recommendations for the appointment of serving judicial officers to higher appointments, as well as decisions to appoint formerly serving officers to acting judicial appointments after statutory retirement ages. The provision of information to the Attorney-General under clause 119 is critical to informing such decisions and ensuring the most suitable judicial appointment. 67

 


 

Clause 120 provides that the Commission may publish certain information to the general public regarding the exercise of functions of the Commission, an investigating panel or an investigator under the Bill or the implementation of recommendations or any other action by a head of jurisdiction under the Bill. This disclosure may occur if the Commission is of the opinion that the disclosure is in the public interest having regard to a series of factors which balance personal privacy considerations with the need to promote public confidence in the judiciary as a body. Such powers may be used-- · to publicly exonerate judicial officers, judicial registrars or VCAT officers where complaints have not been substantiated or have been dismissed; and · to correct public misconceptions about the exercise of any of the Commission's functions, whether generally or in respect to particular cases; and · to reassure the public, consistently with legitimate expectations of privacy and the need to prevent undue or unnecessary discomfort to a subject officer, that corrective steps have been taken to deal with proven instances of misbehaviour or incapacity which, if left un-remedied, have the capacity to damage the standing of the judiciary as a whole. Clause 121 provides for an exemption from the Freedom of Information Act 1982 for any document (within the meaning of that Act) in the possession of the Commission, an investigating panel or an investigator, to the extent that the document relates to complaints handling functions under the Bill. The Bill provides a comprehensive and targeted regime for the disclosure of this material to interested persons and the broader public. The exemption from the Freedom of Information Act 1982 avoids the potential for overlapping and potentially inconsistent information access regimes. Clause 122 provides that Part 5 and Health Privacy Principle 6 of the Health Records Act 2001 do not apply to a document or any information held by the Commission, an investigating panel or an investigator which relate to complaint handling functions. These provisions relate to access to documents and their exclusion avoids the potential for overlapping and potentially inconsistent information access regimes. The Commission 68

 


 

would need to comply with other Health Privacy Principles of the Health Records Act 2001. Clause 123 provides that the Information Privacy Principle 6 under the Information Privacy Act 2000 does not apply to a document or any information held by the Commission, an investigating panel or an investigator which relate to complaint handling functions. Information Privacy Principle 6 relates to access to documents and its exclusion avoids the potential for overlapping and potentially inconsistent information access regimes. The Commission would need to comply with other Information Privacy Principles of the Information Privacy Act 2000. Division 2--Miscellaneous provisions Clause 124 provides for a regulation making power of the Governor in Council for or with respect to certain matters. PART 8--REPEAL OF JUDICIAL COLLEGE OF VICTORIA ACT 2001 AND AMENDMENTS TO OTHER ACTS Division 1--Repeal of Judicial College of Victoria Act 2001 Clause 125 repeals the Judicial College of Victoria Act 2001. Division 2--Amendments to other Acts Clause 126 inserts into the Children Youth and Families Act 2005 a new provision dealing with the President of the Children's Court's responsibility for the effective, orderly and expeditious exercise of the jurisdiction and powers of the Court. Clause 127 repeals the provisions in the Children Youth and Families Act 2005 dealing with the standing down, investigation and removal of a judicial registrar from office. The standing down of a judicial registrar is now dealt with in Division 4 of Part 4 of the Bill and the removal of a judicial registrar is dealt with in Division 2 of Part 6. Clause 128 repeals the definitions of investigating committee, panel and qualifying office under section 87AAA of the Constitution Act 1975. Subclause (2) inserts a section 87AAA(2) into the Constitution Act 1975 that expands the meaning of "the holder of a judicial office" for the purposes of sections 87AAB and 87AAI of that Act to include the officers that, in the Bill, are defined as 69

 


 

"acting coroner". Section 87AAA(2) will have the effect of providing for an acting coroner (as defined in the Bill) to be removed under Part IIIAA of the Constitution Act 1975. The provision will not prevent the holder of that office ceasing to hold the office on the expiry of the term or the period for which he or she was appointed to act. Clause 129 substitutes the reference to the investigating committee in section 87AAB of the Constitution Act 1975 with the investigating panel established under the Bill. Clause 130 repeals sections 87AAC to 87AAH of the Constitution Act 1975. The repealed provisions deal with the judicial panel established under that Act and the appointment, role, powers and procedure of investigations conducted by the investigating committee. The processes outlined in the Bill replace the processes outlined in the repealed provisions. Clause 131 inserts into the Coroners Act 2008 a new provision dealing with the State Coroner's responsibility for the effective, orderly and expeditious exercise of the jurisdiction and powers of the Court. Clause 132 repeals the provisions in the Coroners Act 2008 dealing with the standing down, investigation and removal of a judicial registrar from office. The standing down of a judicial registrar is now dealt with in Division 4 of Part 4 of the Bill and the removal of a judicial registrar is dealt with in Division 2 of Part 6. Clause 133 inserts into the County Court Act 1958 a new provision dealing with the Chief Judge's responsibility for the effective, orderly and expeditious exercise of the jurisdiction and powers of the Court and power to assign duties to a judge of the County Court. Clause 134 repeals the provisions in the County Court Act 1958 dealing with the standing down, investigation and removal of a judicial registrar from office. The standing down of a judicial registrar is now dealt with in Division 4 of Part 4 of the Bill and the removal of a judicial registrar is dealt with in Division 2 of Part 6. Clause 135 inserts into the Magistrates' Court Act 1989 a new provision dealing with the Chief Magistrate's responsibility for the effective, orderly and expeditious exercise of the jurisdiction and powers of the Court. 70

 


 

Clause 136 repeals the provisions in the Magistrates' Court Act 1989 dealing with the standing down, investigation and removal of a judicial registrar from office. The standing down of a judicial registrar is now dealt with in Division 4 of Part 4 and the removal of a judicial registrar is dealt with in Division 2 of Part 6. Clause 137 inserts into the Supreme Court Act 1986 a new provision dealing with the Chief Justice's responsibility for the effective, orderly and expeditious exercise of the jurisdiction and powers of the Court and power to assign duties to a Judge of the Supreme Court. Clause 138 repeals the provisions in the Supreme Court Act 1986 dealing with the standing down, investigation and removal of a judicial registrar from office. The standing down of a judicial registrar is now dealt with in Division 4 of Part 4 and the removal of a judicial registrar is dealt with in Division 2 of Part 6. Clause 139 repeals the provisions in the Victorian Civil and Administrative Tribunal Act 1998 dealing with the standing down, investigation and removal of a non-judicial member from office. The standing down of a non-judicial VCAT member is now dealt with in Division 4 of Part 4 of the Bill and the removal of a non-judicial VCAT member is dealt with in Division 2 of Part 6. Division 3--Repeal of Divisions 1, 2 and this Division Clause 140 repeals Divisions 1 to 3 of Part 8 on 1 January 2013. This does not affect the continuing operation of the amendments made by the provisions in Divisions 1 and 2 of Part 8. Division 4--Transitional and savings Clause 141 clarifies that the Division does not affect or limit the operation of the Interpretation of Legislation Act 1984, unless the contrary intention appears. Clause 142 provides for transitional arrangements for the Commission being the successor of the Judicial College of Victoria including the assumption of rights and liabilities, and also provides for references in any other law or document to the Judicial College of Victoria Act 2001 to be deemed to be references to the Bill. Subclause (2) provides for a person holding office as a director of the board of the Judicial College of Victoria immediately before the commencement of clause 125 continuing to hold 71

 


 

office as a member of the Board of the Commission for the balance of his or her term of appointment, subject to the Bill. The person would be treated as a person appointed pursuant to clause 9(2). Clause 143 provides that a matter referred to an investigating committee constituted under section 87AAD of the Constitution Act 1975 may continue to be investigated by that committee under Part IIIAA of the Constitution Act 1975 as if the Bill was not in force. Clause 144 provides that the Bill applies to a complaint, Part 4 referral of health request that commences after the repeal of the Judicial College of Victoria Act 2001, irrespective of when the grounds for the matter are alleged to have occurred. For instance, a complaint could be made in relation to a matter that occurred before the Bill receives the Royal Assent. If the complaint relates to an event that has already been adequately investigated or occurred many years ago, the matter may be dismissed under clause 36(1)(g) (i.e. "the Commission is satisfied that, having regard to all the circumstances of the case, further consideration of the complaint is unnecessary or unjustified"). 72

 


 

 


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