Bills

Judicial Conduct Commissioner (Miscellaneous) Amendment Bill

Introduction and First Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (15:20): Obtained leave and introduced a bill for an act to amend the Judicial Conduct Commissioner Act 2015. Read a first time.

Second Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (15:21): I move:

That this bill be now read a second time.

Today, I introduce the Judicial Conduct Commissioner (Miscellaneous) Amendment Bill 2024. 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 and report into eight complaints against 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. This was the first judicial complaint panel constituted under the act and I took the opportunity to review the operation of the act personally, being generously afforded an opportunity to meet 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 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 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 the 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 the 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 of 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 a 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 subject to 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 clarity 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 subject of the complaint and, importantly, any witnesses or complainants appearing before the inquiry. New section 23C ensures that the person appearing before a judicial conduct panel inquiry has the same access to witness protections that are available to witnesses in other legal proceedings by force of section 13 of the Evidence Act 1929. Such witness protections might include that a court can order that the witness be accompanied by a relative or friend for the purpose of providing support.

New section 24A requires the 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 any requirements under the act relating to publication, confidentiality and non-disclosure of information and evidence.

Finally, new section 24B deals with the examination, cross-examination and re-examination of witnesses and complainants. This section makes it clear that the 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 my sincere thanks and appreciation for the brave and thoughtful feedback received from past complainants, which has 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 chamber and seek leave to have the explanation of clauses inserted in 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.

Debate adjourned on motion of Hon. D.G.E. Hood.