Judicial Conduct Commissioner (Miscellaneous) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 6 June 2018.)

Mr TEAGUE (Heysen) (12:16): I rise to support the bill. The Judicial Conduct Commissioner (Miscellaneous) Amendment Bill 2018 introduces a number of incremental yet important amendments to the Judicial Conduct Commissioner Act 2015. In the broad, it does three things. It serves three new purposes. I note that they are all matters that are within the scope of requests that have been made by the Judicial Conduct Commissioner, the Hon. Bruce Lander QC, to clarify certain of the commissioner's powers and other matters.

In line with similar reforms that have taken place in the early days of the new government, these amendments are part of evolving circumstances in which there is engagement with the commissioner and requests being made by a hardworking and diligent, and certainly proactive, commissioner. So it is against that background that the commissioner has raised these matters and in those circumstances that the amendments are being brought to the house.

What does the bill do in the broad? The bill introduces the possibility for further investigation of a complaint if there is information that warrants such further investigation, rather than a matter simply being dismissed. In that regard it also allows the commissioner now summarily to dismiss complaints without the need for a preliminary investigation. As section 13 of the act presently provides, the structure of investigation proceeds firstly on the basis of the matters addressed in section 13(1).

That is, in relation to a complaint, the commissioner, as the act stands, is required to conduct a preliminary examination of each complaint that is received in order to determine whether the complaint is one that should be referred to the OPI (Office for Public Integrity) in accordance with section 15; or, if there are grounds for exercising the commissioner's power under section 16, to take no further action in respect of the complaint; or, indeed, if there are grounds for dismissing the complaint under section 17.

I will address the specific, newly introduced subsections to expand upon and amplify section 13 in a moment, but that is as the act currently provides. The effect of the amendments in this regard would introduce the possibility for the commissioner to form that view and to dismiss summarily without a preliminary examination in those circumstances. Broadly, that is the first purpose of the amendments.

Secondly, the bill would provide for the identity or identities of complainants to no longer be required to be disclosed to the relevant judicial officer, the subject of a complaint, that is, without the consent or request of the complainant, or in circumstances where the commissioner formed a view that the disclosure was necessary.

The bill introduces the important possibility, in practice, of practitioners not facing, as a matter of course, a situation in which they might otherwise be dissuaded from bringing a complaint to the attention of the commissioner for fear of suffering from any retaliation or otherwise opprobrium that might come as a result of the disclosure of the complainant's identity. It is an important change. The process of raising complaints often will be in circumstances where practitioners may wish to raise matters that otherwise might not be raised, where it be for the practical circumstance of the disclosure of their identity and the matters that follow on from there.

Thirdly, the bill provides for the report of the judicial conduct panel to be provided to the commissioner and to make clear that the commissioner has jurisdiction to deal with conduct that pre-dates the commencement of the act.

In the broad, those are the three subjects of the bill. In dealing with the first of the three, I have referred to the amendments to amplify section 13 of the act. Clause 8 of the bill relevantly introduces, after section 13(5), new subsections (6) and (7). Notwithstanding the section 13 regime that provides for preliminary examination prior to determining one of the three outcomes of the preliminary examination, these subsections will provide that, if the commissioner, prior to conducting a preliminary examination, as is contemplated by section 13(1), determines that the complaint is one that must be dismissed under section 17(1), then the commissioner may dismiss that complaint without conducting a preliminary examination. That is section 13, new subsection (6).

New subsection (7) of section 13 provides:

(7) If the Commissioner exercises the power under subsection (6) to dismiss a complaint, the Commissioner is not required to give any notification in relation to the complaint to the judicial officer who is the subject of the complaint or to the relevant jurisdictional head but must give any complainant written notification stating—

(a) that the Commissioner has exercised that power—

And secondly, and in my view importantly in these circumstances, where an additional discretion is being provided for by means of this expanded regime by new subsection (7)(b), the commissioner, in terms of that written notification, must state:

(b) the grounds on which the Commissioner is satisfied that the complaint is one that must be dismissed under section 17(1).

It is an amendment to the preliminary examination regime provided for in section 13. It expands the scope of possibilities and actions open to the commissioner in taking those steps. As I have endeavoured to step through in explaining those additional subsections, I will describe it as striking a balance between, on the one hand, proceeding to a dismissal without the preliminary examination having occurred, and, on the other hand, providing the complainant with the grounds for which that step has been taken by the commissioner.

I further note that the amendment of section 4 importantly brings about a change to make clear where this act is referring to the relevant jurisdictional head. It makes clear that where a complaint relates to a jurisdictional head, the Chief Justice of the Supreme Court is the only relevant jurisdictional head for the purpose of the complaint. The amendment also makes clear that acts of victimisation by a judicial officer may be the subject of a complaint under the act.

The amendments to the Judicial Conduct Commissioner Act 2015, which are the consequence of the bill and which I have described in the broad amendments, are responsive to the requests for the commissioner's proactivity. In an incremental way, they have the effect of providing additional discretion to the commissioner in terms of how they go about disposing of complaints. As I have outlined, they also have the further effect, it is hoped, of ensuring that a complainant is provided with a thoroughgoing due process consideration of any complaint that may be raised from time to time.

Of course, as this environment of oversight evolves, changes will be made incrementally. One aspect that ought to be very much at the heart of everything we do in terms of oversight, as well as the response and consideration of complaints in these circumstances, is that we must take steps to ensure that everything we do is increasing the level of confidence that practitioners and complainants have in engaging with this process. It is by doing this that we are best able to serve the judiciary, the profession and the community more broadly, in that we have a means of dealing with and disposing of complaints through the commissioner process that is both orderly and thoroughgoing.

In the short time that is still available to me, I reflect upon the importance from time to time, and particularly in this context, of the availability of anonymity in a complaints process. In any number of fields, it might be regarded as obvious that it may be desirable in a number of different circumstances for there to be sensitivity around the source of the complaint and that there ought not be any dissuasion or perceived barrier to the bringing of complaints, including any opprobrium that might follow being identified as a complainant.

It is not just in the context of complaints. Anonymity may be desirable in a number of other areas when feedback is sought or where a view is expressed. In this context, where a complaint is to be made—particularly by practitioners who need, as a practical matter, to interact in the course of their profession with those who may be the subject of a complaint—then it is very important, if the commissioner is to be the proper point for the receiving of complaints and the consideration of them, that this be one aspect of the process. The subject of the bill is important yet incremental changes to the 2015 act. They take place in the evolving environment of oversight. They will further enhance the possibility for productive work of the commission, and I commend the bill to the house.

Ms COOK (Hurtle Vale) (12:36): I rise to indicate Labor's support for the bill, and I indicate that I am the lead speaker on this bill. Following the passing of the Judicial Conduct Commissioner Act in 2015, the Independent Commissioner Against Corruption, the Hon. Bruce Lander QC, was appointed as the first Judicial Conduct Commissioner. The role of the commissioner is to deal with complaints regarding the conduct of judicial officers such as magistrates and judges. This bill is the same as the one introduced by the Labor government during the previous parliament; however, the bill lapsed as it did not pass in time.

I understand that the commissioner requested the bill and the amendments, but the Attorney-General might like to confirm whether all the amendments in this bill were in fact requested by the commissioner. The bill clarifies that the commissioner can dismiss a complaint without conducting a preliminary investigation where the commissioner has previously considered the subject matter of the complaint and/or where the commissioner has determined that the complaint, if substantiated, could not warrant taking any action under the act.

A new clause is introduced by the bill that requires the commissioner not to disclose the identity of a complainant to a judicial officer unless the complainant has consented or if the commissioner is of the opinion that disclosure is required so the judicial officer can respond to the complaint. This is particularly important in instances where, for example, a lawyer regularly appears before a specific judge. The bill also clarifies that the Judicial Conduct Commissioner is able to use the staff of the Independent Commissioner Against Corruption and not just staff from the Office for Public Integrity. With those few words, I once again would like to indicate our support for the bill.

Mr CREGAN (Kavel) (12:38): I rise to support the second reading of the Judicial Conduct Commissioner (Miscellaneous) Amendment Bill and to amplify the remarks made by the Attorney-General and the member for Heysen. I have listened carefully to the remarks made by the member for Hurtle Vale. The bill amends the Judicial Conduct Commissioner Act 2015. You will recall, Mr Deputy Speaker, that the Attorney earlier made plain that Mr Bruce Lander QC was appointed by the Governor as the first Judicial Conduct Commissioner following the passage of the principal act through parliament in October 2015 and royal assent to the bill being given on 5 November 2015.

As you well know, Mr Deputy Speaker, I have had the benefit of listening particularly carefully to the member for Heysen. I very much value his thoughtful, useful and productive contribution, not just on this occasion but on other occasions. The amendments contemplated by the bill were developed in consultation with the commissioner and include substantive and consequential amendments to the principal act. One such substantive reform which I wish to reflect on, and which in my view is desirable, is reflected in clause 15 of the bill, which affects amendments to section 32 of the principal act. That amending clause provides in part:

(2) Section 32—after subsection (4) insert:

(5) A notification required to be given by the Commissioner under this Act to a judicial officer who is the subject of a complaint or the relevant jurisdictional head in relation to a complaint must not disclose the identity of any complainant unless—

(a) the complainant has consented to the complainant's identity being so disclosed; or

(b) the Commissioner is of the opinion—

(i) in the case of a notification required to be given to the judicial officer the subject of the complaint—that the disclosure of the complainant's identity is necessary to ensure that the judicial officer can properly respond to the complaint; or

(ii) in the case of a notification required to be given to the relevant jurisdictional head—that the disclosure of the complainant's identity is necessary to ensure that the relevant jurisdictional head can properly exercise their responsibilities in relation to the complaint.

There lies the machinery of the change I wish to address. The effect of the clause, if adopted by this parliament, would mean that the commissioner need not disclose the identity of a complainant to a judicial officer unless the complainant consents to such disclosure, or if the commissioner forms an opinion that disclosure is necessary. This is a substantial departure from rule of law norms.

In the ordinary course of the resolution of any complaint, the person who is the subject of the complaint could expect to know the identity of the complainant or accuser. To have such knowledge is often an important ingredient in determining whether natural justice and procedural fairness have been affected, or whether the person who is the subject of the complaint has been afforded natural justice.

The question that naturally arises is: are there circumstances that exist, as between a judicial officer and any prospective complainant, that would justify some departure from rule of law norms and from this important ingredient in affording a person the subject of a complaint—whether they be a judge or any other person—information that would otherwise allow them to properly participate in the resolution of the process to determine the complaint made against them? I suggest to the house that, in this instance, the answer is yes.

Litigants, barristers and solicitors are likely to be the majority of complainants. In the case of barristers and solicitors, they appear frequently before the same or similar judicial officers, as the member for Hurtle Vale pointed out for the benefit of the house. So we also ask: is a future complainant, knowing that they might appear again before a judicial officer in relation to whom they wish to make a complaint, likely to be deterred from making a legitimate complaint because the judicial officer will know their identity?

There is a risk that a fair-minded lay observer would form the view that there is a chilling effect on complainants in such circumstances. There may not of course be bias in fact; it is just that there is the risk of apprehended bias. We wish to guard against that risk and to make the other consequential amendments the act makes have regard to the machinery of the amending clause, which I have outlined for the benefit of the house.

The amendments we propose also allow the commissioner to dismiss complaints that might properly be characterised, or regarded or formulated properly, as trifling, frivolous or vexatious. I do not use those words as terms of art having regard to the legislation before us but instead to illustrate the discretion that might be exercised by the commissioner if the amendments we now propose are accepted here and in the other place. I make the observation that that is instead the effect of the legislation. I commend the legislation to the house.

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General) (12:46): I thank all members for their contribution in consideration of this bill and, without in any way detracting from the excellent contributions from my colleagues on this side of the house, I also thank the member for Fisher for her indication of support for the government.

An honourable member interjecting:

The Hon. V.A. CHAPMAN: Hurtle Vale, I beg your pardon. I could talk about whether it should be just Hurtle or Hurtle Vale and what I think should have happened under the boundaries commission; nevertheless, I will not hold the house on that matter, which is a little bit extraneous to this debate.

Given the matters raised by the member for Hurtle Vale, I would like to bring to the house's attention the annual report prepared by the Judicial Conduct Commissioner under the statute and required to be lodged after each financial year. Because the establishment of the commencement of this commission occurred in December 2016, the annual report that was tabled late last year by the commissioner, via the attorney-general of the day, was for only a part year. However, the commissioner made clear in that report the charter he was under and the obligations under the act, as well as the particulars of complaints received and how they had been dealt with. I will refer briefly to what was alerted to us last year in the parliament. I quote from page 8 of his report:

Prior to the commencement of the JCC Act, I expected that there would be an initial flurry of complaints. On the first day of operations, however, I did not receive any complaints and, on the second day, I only received one.

I consider that this may have been due to the statutory requirement for the complainant to identify himself or herself. Anecdotal evidence suggests that this may have created reluctance on the part of lawyers to complain.

He then goes on to report to us as the parliament that he had received 23 complaints during that part financial year and that another nine complaints were brought by jurisdictional heads to his attention for noting. He reported to us that six complaints of the 23, as at 30 June 2017, had not been finalised.

For those who were either not in the parliament at the time this was tabled or had not jumped to read this important report, of those 23 complaints the general nature comprised two for alleged failure to exercise power or carry out function, 15 for allegations of inappropriate conduct in court or in chambers, one for failure or delay in delivering judgement or making a decision, three for judicial decision or an order and two for non-SA state court judicial officer matters. Of those, 10 were dealt with by taking no further action.

Under section 16 of the act, that is allowed. The general nature of those complaints was that one of them was for alleged failure to exercise power or carry out function, eight were for inappropriate conduct in court or in chambers and one was for failure or delay in delivering a judgement or making a decision. He reported that seven of those complaints were dismissed under section 17 of the act: two of those for alleged inappropriate conduct in court or in chambers, two for non-SA state court judicial officer, two for judicial decision or order and one for failure to exercise power or carry out the function.

There are a whole lot of other categories that he reports to us in respect of the number of complaints. For example, there were zero referrals from a judicial head, zero resultant reports back to the parliament, zero recommendations to appoint a judicial panel to further hear a matter and six for complaints not yet finalised, as I have indicated. There were a number to deal with notations.

I think it is fair to say that it is not a really busy role that is being undertaken, although of course we will receive in the next few months the commissioner's 2017-18 report and we will see whether he has been busier. However, I make the point that he highlighted even then that there may be some reticence on behalf of complainants to report and work with judicial heads and the commissioner, in particular. The very reason this bill is before us, which I am advised is exactly the same as the bill as previously proposed by the former government, is why we are here.

A couple of matters were raised by the member for Hurtle Vale. I am happy to deal with those quickly in committee, but can I say that there are no additions to this from the new government. This is really to deal with matters that have been raised by the commissioner himself, in consultation with the heads of jurisdiction. Obviously, we are here to try to make sure that, if there is a genuine complaint, it is not being impeded by people who are too frightened to come forward.

Another matter is that the Law Society has provided a suggestion that we add another provision to the bill to require the commissioner to invite a complainant to comment or make submissions when the commissioner is considering whether to disclose their identity and that it be a specific provision, or otherwise allow them to withdraw their complaint if their identity is to be disclosed. This was a submission put by the Law Society.

The government have considered that because we perfectly understand the significance—and that is why we are here—that persons who make complaints, particularly if they are legal practitioners, may be concerned about their identity being disclosed. That is a given. However, the provisions of the bill already ensure that the complainant's identity is not disclosed without consent, or, if it is in a circumstance where no consent has been given, it will only be if the commissioner considers it necessary for the judicial officer to be able to properly respond to the complaint.

Adding the provision suggested by the Law Society does cause some difficulty, as presumably in most cases the complainant would object to their identity being disclosed, but the commissioner may still consider it necessary to disclose it for the judicial officer to be able to answer the complaint. The result is that we end up in a stand-off or a stalemate with the complaint not being able to be properly resolved without disclosure, but the complainant not wanting the disclosure to occur. I thank the Law Society for their view on that matter. They raise a good point, but I think we have adequately and appropriately covered it in the bill.

The second part is giving complainants the right to be able to withdraw their complaints if their identity is going to be disclosed. In that situation, it is conceivable that some behaviour is so serious that the commissioner believes it to be in the public interest for it to be investigated, even if the complainant wants to withdraw the complaint.

It is a bit like when someone lodges a complaint with the police and says, 'I have been assaulted,' and then withdraws that at a later time. They do not want to continue to give evidence, often against a relative, but the police make the decision that this is a matter of public safety and interest and therefore they should continue to prosecute. It is also, I am advised, if there were provisions expressly allowing complaints to be withdrawn that it may open the door for complainants to be intimidated or pressured into withdrawing complaints. If there is no provision allowing withdrawal, there is no opportunity to pressure the complainants.

I hope this would never happen, but we would not want to have a situation where, regarding a judicial officer under review, it came to their attention and they grabbed the lawyer in the lift on the way to court and said, 'I have heard you have put in a complaint about me. Good luck next time you want to get an adjournment. I won't be too sympathetic.' I hope that would never happen, but we want to be able to make sure that there is no opportunity for someone to be placed under pressure in those circumstances.

The government is confident the commissioner takes the issue of confidentiality of complainants' identities very seriously because, as I said, it was his idea that this matter should be brought to the attention of the parliament and remedied. That is what we are doing, and I thank the opposition for indicating their support.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

Ms COOK: Attorney-General, who did you consult with on this bill in complete terms?

The Hon. V.A. CHAPMAN: I do not have a full list of the consultants from the previous bill from the time this was previously introduced by the former government, but I will quickly clarify that. It was the commissioner—obviously, the Judicial Conduct Commissioner being the subject—the Chief Justice, and since the bill was tabled the Law Society have themselves presented their submission in terms of what I have just outlined.

Ms COOK: Of course, the Law Society do a great job. Can the opposition obtain copies of the submissions?

The Hon. V.A. CHAPMAN: I do not think they can, but I can check that. This is in relation to the submissions, not by the complainants.

Ms COOK: The consultation.

The Hon. V.A. CHAPMAN: Yes. I doubt that they would be in written form, but I will check on that. Generally, it has been the practice of the previous government that a number of submissions are put online by whomever presents them—obviously, the Bar Association, the Law Society of South Australia, etc. I will make some inquiries as to whether there is anything written, whether they can be made available, and if they can be made available that they are provided. Is that what you are asking?

Ms COOK: Yes. You mentioned that it would not be a busy type of position, but how many matters would the Judicial Conduct Commissioner hear each year and what categories would they fall into?

The Hon. V.A. CHAPMAN: Could you please repeat the question?

Ms COOK: How many matters would they be hearing?

The Hon. V.A. CHAPMAN: I read those out: 23 in the seven months part-financial year last year; six of those in summary have not been finalised. If you look at Hansard, you will see the breakdown of that.

Mr GEE: In relation to clause 1, can the Attorney-General confirm that the bill only contains measures that the Judicial Conduct Commissioner requested?

The Hon. V.A. CHAPMAN: Yes.

Clause passed.

Clauses 2 to 4 passed.

Clause 5.

Ms COOK: I have just one question on this clause. Is this effectively a transitional clause that applies to the bill, to matters that have occurred before its commencement?

The Hon. V.A. CHAPMAN: Correct.

Clause passed.

Progress reported; committee to sit again.

Sitting suspended from 13:00 to 14:00.