Judicial Conduct Commissioner (Miscellaneous) Amendment Bill

Second Reading

The Hon. S.E. CLOSE (Port Adelaide—Deputy Premier, Minister for Industry, Innovation and Science, Minister for Climate, Environment and Water, Minister for Workforce and Population Strategy) (12:00): I move:

That this bill be now read a second time.

The Judicial Conduct Commissioner Act 2015 established the office of the Judicial Conduct Commissioner to provide an independent, fair and transparent way to deal with complaints about judicial officers. In 2021, the first judicial conduct panel was appointed under the act to inquire into and report on eight complaints against the then magistrate Mr Milazzo. The judicial conduct panel found the complaints against Mr Milazzo proved and recommended his removal as a magistrate. The Governor acted upon that opinion and removed Mr Milazzo from office.

As this was the first judicial conduct panel constituted under the act, the Attorney-General took the opportunity to review the operation of the act, including personally meeting with some of the complainants and witnesses involved in the judicial conduct panel inquiry. It was clear from the report of the judicial conduct panel, the judicial review proceedings undertaken by Mr Milazzo and the experiences of the complainants and witnesses, that the operation of the act would be improved by legislative reform. The proposed amendments to the act will provide greater clarity for the participants around procedural matters and ensure that there is some consistency in how future judicial conduct panel inquiries are conducted, whilst still giving the judicial conduct panel flexibility to determine additional procedures based on the requirements of a particular inquiry.

I now turn to the detail of the bill. The definition of complainant in section 4 of the act is amended by clause 3 of the bill so that a person will be considered to be a complainant under the act despite not being the maker of the formal complaint where the misconduct that was the subject of the inquiry was directed at them. This will mean that such category of people will have the benefit of existing provisions in the act currently relevant only to complainants, such as the right to be informed about the progression of the complaint.

Clause 4 of the bill inserts new section 6A into the act. This section requires the commissioner to prepare and publish guidelines relating to how meetings of judicial conduct panels are to be called, how business is to be conducted at judicial conduct panel meetings and how judicial conduct panels are to conduct inquiries and examinations of complainants under the act. A consequential amendment is made to section 23 of the act by clause 6 of the bill. Clause 5 amends section 14 of the act.

These amendments give the commissioner the power to postpone consideration of a complaint if they consider it appropriate to do so, where the complaint is made during the course of a hearing conducted by the judicial officer the subject of the complaint. Postponement can be for a specified period or until the hearing has been completed.

Clauses 7 and 8 of the bill insert five new sections into part 4 of the act to provide greater certainty around procedures that apply when a judicial conduct panel is established. New sections 23A and 23B set out the process for the appointment of counsel to assist in an inquiry and create a statutory entitlement to legal representation for the judicial officer, the subject of the complaint, and any witness or complainant appearing before the inquiry.

New section 23C ensures that persons appearing before a judicial conduct panel inquiry have the same access to witness protections that are available to witnesses in other legal proceedings under section 13 of the Evidence Act 1929. Such witness protections might include that the court can make an order that the witness be accompanied by a relative or friend for the purpose of providing emotional support.

New section 24A requires a judicial conduct panel to take certain actions before asking questions of a witness, including informing the witness of their rights and obligations as a witness, and of any requirements under the act relating to the publication, confidentiality and non-disclosure of information and evidence.

Finally, a new section 24B deals with the examination, cross-examination and re-examination of witnesses and complainants. The section makes it clear that a complainant or witness can be examined by counsel assisting the inquiry, the legal representative of the judicial officer to whom the inquiry relates and any other person granted permission to do so by the judicial conduct panel.

Importantly, subsection (2) of new section 24B protects witnesses and complainants from being personally cross-examined by the judicial officer, the subject of the complaint. Instead, where the judicial officer is not legally represented, the cross-examination must be undertaken either by submitting questions to the judicial conduct panel or as otherwise directed by the judicial conduct panel. This provision is modelled on section 13B of the Evidence Act 1929.

I am pleased to be able to introduce this bill today and wish to express the government's sincere thanks and appreciation for the brave and thoughtful feedback received by past complainants, which helped shape this reform. I hope that it will have a positive impact for participants in future judicial conduct panels through providing greater certainty about the procedures of such a panel. I commend the bill to the members and seek leave to insert the explanation of clauses into Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

Part 2—Amendment of Judicial Conduct Commissioner Act 2015

3—Amendment of section 4—Interpretation

This clause amends section 4 of the Act to extend the definition of complainant to include certain other persons against whom judicial conduct is directed.

4—Insertion of section 6A

This clause inserts new section 6A into the Act, requiring the Commissioner to publish guidelines for the purposes of the Act.

5—Amendment of section 14—Request to postpone consideration of complaint

This clause amends section 14 of the Act to set out circumstances in which the Commissioner may postpone consideration of a complaint.

6—Amendment of section 23—Functions and procedures of panel

This clause makes a consequential amendment.

7—Insertion of sections 23A, 23B and 23C

This clause inserts new sections into the Act as follows:

23A—Appointment of counsel to assist inquiry

This section allows the Attorney-General to appoint counsel assisting at the request of a judicial conduct panel.

23B—Representation and participation

This section sets out when judicial officers and others must be allowed legal representation in an inquiry.

23C—Special arrangements for protecting witnesses from embarrassment, distress etc when giving evidence

This section applies section 13 of the Evidence Act 1929 to an inquiry, providing protections for witnesses when giving evidence.

8—Insertion of sections 24A and 24B

This clause inserts new sections into the Act as follows:

24A—Actions to be taken by panel before questioning witness etc

This section sets out requirements of a judicial conduct panel to inform witnesses and legal representatives of certain rights and obligations.

24B—Examination etc of complainant and witnesses

This section makes provision regarding who can examine, cross examine or re-examine witnesses, and makes special provisions regarding cross examination of a witness by the judicial officer to whom the inquiry relates.

9—Amendment of section 30—Immunity from liability

This clause amends section 30 of the Act to extend immunity from liability to members of a judicial conduct panel and counsel assisting the panel.

Mr TEAGUE (Heysen) (12:05): I rise to indicate I am the lead speaker for the opposition and to indicate the opposition's support for the bill. I share the sentiments of the Deputy Premier in terms of the second reading setting out the scope and purpose of the function of the changes, the subject of the bill. I might just reflect briefly.

The act provides for the office of the commissioner and in turn provides for the process by which a panel may be required to be convened to deal with the circumstances of a complaint. Commissioner Michael Boylan KC recognised and acknowledged the important work the commissioner does. The changes, however, the subject of this bill, are very much concerned with the processes of the panel.

It is perhaps opportune to highlight that the Judicial Conduct Commissioner performs an important function in terms of receiving complaints about judicial conduct and can take a variety of actions in response, including requiring the provision of documents, conducting some preliminary examination and determining then what ought to happen. Importantly, the commissioner does not delve into matters properly that ought to be the subject of an appeal—things like decisions of judges; the legality of those decisions, and so on—nor does the commissioner, through the office, make determinations about any judicial misconduct. What the commissioner does is to recommend to the Attorney-General that a panel ought to be established where circumstances are appropriate, and that is where we get to the subject matter of this bill.

I hasten to add to all of that that we have seen panels established, and that has led to learnings and, as a result, the amendments that are now before the house, the subject of the bill. It is my hope that these are vanishingly rare circumstances. I endorse and agree with the Deputy Premier's observations about appreciating what can be learned—the result of these unfortunate circumstances in which complainants have been moved to bring matters to the attention of the commissioner—and for a panel to be established and then appropriate sanction to be applied following a panel investigation. There ought to be such processes, and they ought to be readily available to complainants and those others who are the subject of misconduct.

These amendments will ensure that all of those interested parties are now more thoroughly able to be kept informed, to be represented by counsel, as may be appropriate, and for the panel, similarly, to be supported in that way. In saying that, I hope that the circumstances of establishing a panel might be vanishingly rare. That is simply expressing the expectation that judicial officers ought to be conducting themselves according to the highest ethical levels—leaving aside the exercise of the necessary skills in the job, but with total integrity at all times. They should be held to the highest of standards. Where that does not occur, the work of the commissioner and the panel is then available, the subject of the act as it will be amended now in a meritorious way. So I commend these changes and commend the bill, again indicating, I hope, that the panel in particular is something that is deployed vanishingly rarely.

Mr BROWN (Florey) (12:11): I am pleased to rise in support of the Judicial Conduct Commissioner (Miscellaneous) Amendment Bill 2024. The Office of the Judicial Conduct Commissioner was established by the Judicial Conduct Commissioner Act 2015 to provide a means for dealing with complaints arising in relation to judicial officers in South Australia. The aim in establishing the Office of the Judicial Conduct Commissioner was to create an independent, transparent and fair process that would be followed in considering and acting upon such complaints.

In 2021, the first judicial conduct panel was appointed under the act. Its purpose was to inquire and report into eight complaints that were made against one particular—now former—magistrate. This judicial complaint panel was the first to be constituted under the act. The Attorney-General in the other place took the opportunity to meet with some of the complainants and witnesses who were involved in the judicial conduct panel inquiry. Having gained firsthand experience with the panel's processes, the complainants and witnesses were in a unique position to identify areas for improvement. It was clear from their experiences that the operation of the act could be improved by legislative reform. It was also apparent from the report of the judicial conduct panel that reform was warranted.

Feedback received in relation to their experience of giving evidence to the judicial conduct panel during the inquiry has informed the development of the proposed reforms we now consider. These amendments to the act intend to provide greater clarity for participants around procedural matters and to ensure that there is consistency in how the future judicial conduct panel's inquiries are conducted, while still affording the judicial conduct panel the necessary flexibility to determine additional procedures based on the requirements of a particular inquiry.

A draft bill was prepared and was the subject of targeted consultation in September 2023. A consultation bill proposed a number of procedural changes to the Judicial Conduct Commissioner Act 2015. Clause 3 of the bill proposed to amend the definition of 'complainant' so that a person will be considered to be a complainant, despite not being the maker of the formal complaint, where the misconduct, the subject of the inquiry, was directed at them. A complainant, for example, has special rights to receive information about the progress of the inquiry.

At clause 5 the consultation bill proposed to give the Judicial Conduct Commissioner the power to postpone consideration of a complaint, where the complaint is made during the course of a hearing conducted by the judicial officer who was the subject of the complaint. In such a circumstance the Judicial Conduct Commissioner must notify that judicial officer of the complaint straightaway, which would hopefully result in the cessation of any inappropriate behaviour. If the Judicial Conduct Commissioner wishes to delay the conduct of a preliminary examination until after a trial, under previous provisions they would have to wait for the judicial officer to request a postponement or carry on. If they determined it was desirable to wait until the trial was over, it is arguable that they are not conducting the preliminary examination as expeditiously as possible, which is not consistent with the requirement of the act.

Clause 7 of the consultation bill sets out the process for the appointment of counsel to assist in an inquiry and create a statutory entitlement to legal representation. It provided that section 13 of the Evidence Act 1929 will apply to an inquiry so as to provide the same access to witness protections for persons giving evidence to a judicial conduct panel that are available to witnesses in other legal proceedings—for example, having a support person or appearing by audiovisual link.

Clause 8 of the bill required a judicial conduct panel to take certain actions before questioning witnesses, including informing legal representatives of the witness at hearings of any requirements under the act relating to confidentiality, publication and non-disclosure of information and evidence. Clause 8 further made it clear that complainants and witnesses can be cross-examined by counsel assisting the inquiry, the judicial officer to whom the inquiry relates, the legal representative of the judicial officer, or any other person who is granted permission to do so by the judicial conduct panel.

Stakeholders were generally supportive of the changes proposed in the consultation bill. However, a number of issues were raised that have resulted in several changes to the version of the bill that we now consider. Those key changes include an amendment to proposed new section 24B, which is modelled on section 13B of the Evidence Act 1929. That amendment prevents the judicial officer who is the subject of the complaint from personally cross-examining witnesses and complainants during the panel's proceedings, restricting them to cross-examinations through counsel, or through submitting questions to the judicial conduct panel or counsel assisting the judicial conduct panel.

A further change is the insertion of a new section 6A to require the commissioner to publish guidelines to provide direction for future members of judicial conduct panels and provide future participants with a strengthened understanding of how a judicial conduct panel will deal with complaints.

In addition to the procedural changes proposed in the draft version of the bill, stakeholder views were sought on broader changes relating to the application of the act, the powers of the commissioner and judicial conduct panels, and the application of clearer procedures to the resignation and retirement of judicial officers. As further targeted consultation will be required on these more complex changes, they will be progressed in a separate bill in the interest of avoiding any further delays to the introduction of the stage 1 procedural reforms. Further technical changes that could be contemplated for a later bill may include:

extending the application of the Judicial Conduct Commissioner Act 2015 to former judicial officers;

expressly providing for the disclosure of information obtained during a preliminary investigation under the Judicial Conduct Commissioner Act 2015 to the Supreme Court and the Legal Profession Conduct Commissioner;

providing for the suspension of judicial officers while subject to an investigation under the Judicial Conduct Commissioner Act 2015;

providing greater clarity on the operation of the secrecy provisions in the Judicial Conduct Commissioner Act 2015;

applying clearer procedures to the resignation and retirement of judicial officers; and

amending section 5(1) of the Legal Practitioners Act 1981 to expand the definition of a 'show cause event' to capture a circumstance where an adverse finding is made against the former judicial officer under the Judicial Conduct Commissioner Act 2015.

The amendments to the act proposed by this bill aim to ensure better consistency in how future judicial conduct panel inquiries are conducted, whilst still giving the judicial conduct panel flexibility to make determinations around procedures based on the requirements of an inquiry.

The true test of any piece of legislation, or indeed any newly established entity, can be found in its operation. The opportunity to learn from the real experiences of those who have personally engaged with a judicial conduct panel inquiry as complainants and witnesses has proved a valuable one, and the feedback they provided was of important assistance in developing the reforms that are put forward in this bill.

I would like to take this opportunity to acknowledge and commend the complainants and witnesses whose feedback has helped to instigate, and also significantly assist in shaping these reforms. It is the sincere hope of the government that their willingness to provide feedback to assist in developing these reforms will lead to better experiences and outcomes for future participants in judicial conduct panels. I commend the bill to the house.

The Hon. S.E. CLOSE (Port Adelaide—Deputy Premier, Minister for Industry, Innovation and Science, Minister for Climate, Environment and Water, Minister for Workforce and Population Strategy) (12:18): I am very pleased to close the debate of the second reading. I thank the participants in the debate—'discussion' might be a better way of describing it—and also all the advisers and the people who have contributed to the drafting of the legislation. With that, I commend the bill to the house.

Bill read a second time.

Third Reading

The Hon. S.E. CLOSE (Port Adelaide—Deputy Premier, Minister for Industry, Innovation and Science, Minister for Climate, Environment and Water, Minister for Workforce and Population Strategy) (12:19): I move:

That the bill be now read a third time.

Bill read a third time and passed.

Mr ODENWALDER: Mr Deputy Speaker, I draw your attention to the state of the house.

A quorum having been formed: