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House of Assembly - Fifty-Third Parliament, Second Session (53-2)
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Bills

Judicial Conduct Commissioner Bill

Committee Stage

In committee.

(Continued from 13 May 2015.)

Clause 1.

Ms CHAPMAN: Madam Chair, I draw your attention to the state of the committee.

A quorum having been formed:

Ms CHAPMAN: My question to the Attorney is: as the bill has been drafted to be consistent with the New Zealand model of a commissioner, as I understand it on the information briefings that we have had, are the foreshadowed amendments consistent with that model as well?

The Hon. J.R. RAU: The answer is that there has been some variation based on feedback we received in the consultation process. Yes, we might have started there but in many material respects we have moved on in many elements.

Ms CHAPMAN: I am not familiar with how the New Zealand model operates, so I would ask the Attorney-General to indicate how long that has been operational and whether, in its current format, it has been successful, had no work, been overworked, had judges suspended, expelled or deported to Australia, or whatever, in the period in which it has operated?

The Hon. J.R. RAU: I do not have any particular information about what has happened in New Zealand but can I say this: sometimes, if these measures work well, the measure of how well they have worked is the fact that they have not had any work to do, if that is not completely double-dutch. The mere fact that this is there means that members of the judiciary are aware.

Ms CHAPMAN: Because the New Zealand model is the one which we are copying—and there has been some discussion during debates about other models around the country—would the Attorney ascertain specifically three things between the houses and provide the following information:

the time for which the New Zealand model has been in operation;

the number of occasions on which complaints have been received; and

whether they have either been dismissed, acted upon or referred to parliament for action?

If we could have an outcome of that, I would appreciate it.

The Hon. J.R. RAU: Assuming that is reported on, and I do not know whether it is—I would hope it would be—

Ms Chapman: It would be in the annual report.

The Hon. J.R. RAU: I hope it is in the annual report and, if it is, I am happy to try to search out that information. Can I just say again that it is impossible, really, to calculate the effect of the mere presence of this in modifying behaviour and just because there are not a lot of complaints does not necessarily mean that the act would not be serving a good purpose.

Ms CHAPMAN: I should place on the record I am not being critical of the Attorney's assertion that sometimes the very existence of a structure such as this would hopefully have some sobering effect on those who might otherwise misbehave. It is a bit like having a policeman on a road: it helps to focus your mind on not speeding or committing any road traffic offences. I was really just trying to ascertain this information because, ultimately, this appears to be where the government decided this would be the model which we follow, that is all.

The Hon. J.R. RAU: In late breaking news, Madam Chair—and I thank Mr Evans from my office whose capacities with the machine are considerable—we do have some information here. I think this comes from their annual report. According to this, the number of complaints received in the year 2013-14 was 235, in the previous year it was 258, in the previous year it was 328, and in the previous year it was 181. The earliest year that is reported is 2009-10 which was 223. Of those, the number unfinalised in each of those respective years was 79 in 2013-14, 97 in the previous year, 146 in the previous year, and 138 in the previous year. It means that the total of both complaints received and those unfinalised from the previous year (and I am starting with 2013 and working backwards) were respectively 314, 355, 474, 319 and 286.

That is in a national jurisdiction and obviously has more people than we have. There is even a breakdown here as to which courts appeared to attract them: Supreme Court, 67; Court of Appeal, 21; High Court, 62; District Court, 53; Family Court, 24; Environment Court, five; Employment Court, one; and Coroner's Court, two.

Ms CHAPMAN: Are there any identified numbers of matters that were referred to parliament to act upon, assuming for the moment that parliament has a role in New Zealand to dismiss a judge similar to ours?

The Hon. J.R. RAU: I will provide a copy of this to the honourable member in due course, but just looking at it here, it has a list of outcomes. The first outcome is 'take no further action', the second one is 'complaint dismissed', which is the same as ours, the third one is 'complaints referred to head of the bench', the fourth one is 'recommend judicial officer conduct panel be appointed under section 18' and the last one is 'complaint withdrawn'. In every year, except 2009-10, there were no recommendations at all that a panel be convened. In 2009-10 there were only three out of 286 matters in respect of which there was a recommendation that a panel be appointed. That appears to be the answer. There does not appear to be any recording of there being an intervention by the parliament.

Ms CHAPMAN: There is only one other matter I really want some understanding of, Attorney. You announced this initiative in January this year. It was referred to in the course of the release of one of your Transforming Criminal Justice discussion papers. I am assuming that it means that judicial officers can be just as naughty in civil jurisdictions as in criminal jurisdictions. For whatever reason, it was brought to your attention as a very good idea for consideration. I understand and perfectly well accept that there had been some discussions with the heads of the courts who gave their endorsement in general terms that this was appropriate. I am not asking for the detail.

It may be that all the judges and judicial officers were away on holiday in January and February and not really turning their mind to reading the paper about whatever initiatives you might announce in that month, but what appears to be missing in this is why this was not a matter that was at least put to them before either you had announced that you were going to do it or at least before the bill was presented for the judges generally, and all judicial officers who are going to be in this format, for them to have a say.

The Hon. J.R. RAU: The exact dates I cannot recall, but I can assure the honourable member that there is no way that one could characterise my approach to the courts about this matter as having been surreptitious or in any way catching them unawares. I do recall having had conversations with various judicial officers and I am talking in particular here of the heads of jurisdictions, and I am positive that in those conversation leading up to the drafting of a bill there were discussions about these matters. I am absolutely certain that none of them could have been in any way caught unawares of the fact that this bill was being developed, and I am pretty sure I provided them copies of the draft that I was working on pretty early in the piece.

If I am not mistaken, the document I have here provides me with some idea of dates: the Law Society, 2 February; same date for Mr O'Sullivan, who at that time, as you would be aware, was president of the Bar Association; the director of the Legal Services Commission, 27 January; the Chief Justice, 27 January; the Chief Judge, 27 January; the Chief Magistrate, 15 January; Mr Greg May, the Legal Profession Conduct Commissioner, 9 February; the ALRM; community legal services and Mr Tony Kerin from ALA on 9 February; Mr Kimber, obviously DPP, 2 February; and then other earlier ones were the Hon. Bruce Lander QC on 10 December—that was an earlier draft. I can indicate that, in respect of the ICAC Commissioner, I was interested not only in his general views about the public integrity matter of this but also, as the member for Bragg would be aware, Commissioner Lander, having being a serving federal court judge, had some practical experience of operating under the rules in the Federal Court, which we have more or less picked up here, so I thought his contribution on that might be of some assistance.

Other people were Jos Mazel, Chief Executive of Department for Communities and Social Inclusion, 27 January; Mr Cannon who was the acting chief magistrate, again, on 9 February; and Kathy Mack from Flinders University on 30 January. A range of people were provided with copies, but before the bill got to that point, I am absolutely certain that I had conversations with judicial officers about the matter.

Ms CHAPMAN: I do not disagree, Attorney, that there had been discussion with the heads of the courts, but my point was, apart from these other usual stakeholders if I can put them in that general way—although Mr Lander QC would be an exception but for the reasons you have explained, sensible consultation—you announce this in early January, you put out a discussion paper about which you had to have submissions in by the end of January. You tell serious stakeholders, including the Chief Judge and Chief Justice, three days before the closing date of consultation, which is 27 January, assuming they are even available and are not at their holiday houses, and then you introduce this bill as one of the first bills back here in the parliament.

I still do not understand why there was no discussion with the judiciary themselves, the very people who are going to be the subject of this new structure. As a result of that, there was clearly some commentary including from the Adelaide Law School published in the Law Society about this very thing, that is, a lack of discussion and at least an opportunity for our judicial officers—and that is a fairly broad group under this proposal—to respond.

The Hon. J.R. RAU: I am just advised that I must have misled everybody because those were the dates apparently that the submissions were received not sent, so I apologise.

An honourable member interjecting:

The Hon. J.R. RAU: Yes, but I am just apologising as soon as I found out.

The Hon. T.R. Kenyon: Correcting the record at the first available opportunity.

The Hon. J.R. RAU: The first available opportunity. On the general proposition of consulting with the judiciary directly, I take the view that it is not really appropriate for me as a member of the executive government to take it upon myself to consult directly with members of the courts, certainly in any formal sense, without using the conduit if you like of the head of each jurisdiction. In my formal communications with the heads of the jurisdictions, I assume that those heads of jurisdiction would have in their own counsel talked to their people about it and sought their opinions, and those would have been digested in any response they gave to me. That is the way I approached it.

Ms CHAPMAN: I think that would have some gravitas, and I would be much more accommodating in accepting it if in fact the positions of the heads of courts had been anything other than days after. They may have been oral, they may have been a phone call, they may have been a letter; I do not know, I have never seen them. I am not necessarily asking to be privy to any conversations or material which might relate to the normal conversations you would have with the heads of courts, Attorney. What I am asking, though, is for some assurance regarding their advising you, in whatever form that was. One of them was from the Chief Magistrate on 15 January, which was three days after you made a public statement about what you were going to be doing. The other two were submissions from a senior justice and a judge on 27 January—in whatever format that was.

I just cannot possibly imagine how they could have been in a position to canvass their brothers and sisters on the bench in the middle of January in a matter of days. I do not see that as even possible, and nor would I expect them to have done it. I am just a little puzzled as to how you could rely on an indication from them. I read what you said in the radio transcript, and I have seen your article in the paper, and I do not have any objection to it. It is probably a good idea that we have some kind of independent person deal with these matters, but taking that as an indication of no immediate objection to the principle of it, which I perfectly understand, to me does not equate to consultation with the very people this is going to affect.

The Hon. J.R. RAU: All I can say to you, member for Bragg, is that I made absolutely no secret of my intention to pursue this particular course. I was completely open with them in my thinking about this from the latter part of last year. I provided them with a draft of a bill as soon as I possibly could. They were well and truly forewarned as to what the general propositions contained in the bill would be. I remember on at least one occasion, I think as early as October, having a conversation with the Chief Justice in my office. We had a conversation about the bill as it then was prior to its initial consultation release.

Of course, since that time, if any of the courts have had any views about the matter, I have been open to listening to those and, indeed, as recently as a week or so at a meeting with the Chief Justice, I raised with him the very matter that I raised in the parliament yesterday about a matter that had just occurred to me about the potential for unscrupulous individuals to try to use this as a weapon against members of the judiciary who are doing the right thing. I indicated to the Chief Justice that I thought it was important that we do something to guard against that, which is the main reason for the amendments that I have circulated. I think the member for Bragg has a copy of those.

Ms CHAPMAN: I have just a couple of other general matters. The Law Society's letter of 26 March 2015 draws to your attention, Attorney, their opposition to the manner in which special justices can be dealt with and, in particular, their disagreement with the suspension or removal from office by force of the legislation; in other words, it would be automatic if they were charged with an offence. In other words, my understanding at present is that if a special justice acts in a matter which is not to the standard of the Attorney, he himself is in a position to deal with the special justice, including removing them from the role. Is this an issue that you have considered and rejected, or has it been considered and put in there somewhere? Have I missed it?

The Hon. J.R. RAU: I thank the member for Bragg for that question. Yes, we have considered it and I advise the house that the Law Society thinks it to be unfair that special justices are suspended or removed from office 'by force of legislation' if they are charged with an offence, but they appear to be proceeding in some degree of ignorance of the current law because section 11(4a) and (4b) of the Justice of the Peace Act provide:

(4a) If a special justice is charged with an offence other than an expiable offence, the special justice is, by force of this subsection, suspended from office as a special justice until proceedings based on the charge have been completed.

(4b) However, the Attorney-General may, on application by the special justice, by notice in writing—

(a) cancel the suspension if satisfied that the outstanding charge should, in the circumstances, be disregarded; and

(b) impose such conditions specifying or limiting the official powers that the special justice may exercise as the Attorney-General considers appropriate.

Subsections (5a) and (5b) state:

(5a) If a special justice is found guilty or convicted by a court of an offence other than an expiable offence, the special justice is, by force of this subsection, removed from office as a special justice.

(5b) However, the Attorney-General may, on application by the special justice, by notice in writing—

(a) reinstate the special justice if satisfied that the finding of guilt or conviction should, in the circumstances, be disregarded; and

(b) impose such conditions…

These provisions were added by the parliament by way of the Statutes Amendment (Attorney-General's Portfolio) Act 2012. The Law Society objects to the five-year reappointment rule; that is a re-enactment of the current section 11(6). The provisions of the bill merely reflect the current scheme which was added recently and attracted no controversy at the time. It appears the Law Society is, or was, or continues to be unaware of this. There is no reason, therefore, to change it.

The reason for the movement of the provisions to this bill is simply this: why should a magistrate hearing an offence be subject to this new system of discipline and a special justice performing exactly the same duties not be; that would not make sense.

Clause 1 passed.

Clauses 2 and 3 passed.

Clause 4.

The Hon. J.R. RAU: I move:

Amendment No 1 [DepPrem–1]—

Page 4, line 31 [clause 4(1), definition of judicial office, (c)]—After 'that may' insert 'only'

Amendment No 2 [DepPrem–1]—

Page 4, line 34 [clause 4(1), definition of judicial office, (e)]—After 'that may' insert 'only'

Ms CHAPMAN: I indicate that we consent to the amendments Nos 1 and 2.

Amendments carried.

Ms CHAPMAN: I have a question in relation to clause 4(2) which sets out what the conduct is to cover, which is just about everything—obviously, act or omission, whether or not it is as part of their duties and whether or not it has resulted from some illness or incapacity. Often, the conduct of persons is for the purpose of carrying out their function, whether it is a medical practitioner, or licensee of a hotel, or as legal practitioner, although that is one that has been extended to outside of hours conduct, so to speak. Is this following the New Zealand model?

The Hon. J.R. RAU: I am not sure, but can I say this: there are two things, certainly in my mind, about this. The first is that, clearly, the behaviour of a judicial officer in the discharge of their duty as a judicial officer would be relevant. Having been through the experience for some time of receiving criticism about the way in which the former provisions of the Legal Practitioners Act operated—in particular in relation to the Humphreys matter and the fact that, as matters stood then, it would appear that there was considerable doubt as to whether the behaviour of Mr McGee was something which could even have been considered properly had he been convicted of even a more serious matter by the Law Society—and making, ultimately, changes to that so that it is crystal clear that a legal practitioner who performs some misbehaviour outside of their role as a legal practitioner can have that matter considered, and it appears that the community generally not only accepted that proposition but was clamouring for that proposition, it appeared to me that there would be some incongruity if a judicial officer were not similarly treated.

More to the point, I did turn my mind to situations such as the situation, which may not be entirely apposite but I just throw it up for an example, where Justice Einfeld got himself into a spot of bother a while ago that possibly would have traversed both his duties as a judicial officer and otherwise. It is an example of where you might have to say, 'Well, had he in some way done the wrong thing in his capacity as a judge by basically perjuring himself before a court?' and there might have been some legal argument about that. So, that deals with that bit.

The other bit is that if a judge were to be in a situation where by reason of infirmity, and that infirmity might be physical or mental—and I think the member for Bragg and I are both old enough to recall individuals who did have difficulties and we want to be compassionate and everything, obviously, with those people, and I certainly do not intend to identify anybody now—if that results in them being incapable of properly discharging their judicial function, albeit for reasons beyond their control, then that should be a matter which, clearly, is able to be dealt with. It may not be a person's fault that they are suffering from some illness and one might feel great compassion for the fact that they are suffering from an illness, but does that mean that members of the public appearing before them should accept a lower standard of behaviour or a lower level of concentration or some level of abuse or misbehaviour from the bench that would otherwise not be tolerable? So, that is essentially the reasoning behind those provisions.

Ms CHAPMAN: Here is the part of the act though that really gets to the pointy end of the pencil. I understand what the Attorney-General says with respect to wanting to make sure, in the interests of people who come before our judicial officers, of having some confidence in the standard of administration of justice that they are going to dispense. In the absence of there being any guidelines or, I suppose, regulations as to what is going to be caught here, it seems to me that the difficulty of having such a broad approach is that it may act as an instrument that would have some influence on the independence of the judiciary. This is a special group, this is not an extension of better, smarter, more experienced lawyers, these people have a special appointment, even as distinct from governors, who have a separate role to the executive and the parliament.

It is all very well to have a process by which we can appoint these people—and there is no question that our process here, just like for governors really, is appointment by the executive of the day, which makes the decision as to who these people will be—but I suppose we place a fairly high threshold for removal of these people or, potentially, intimidation of these people into resigning by having a process of removal which is really high. That is, if they are unable to fulfil their duties or have acted in a manner that so offends the principle of having the proper capacity to carry out their duty, then they come back here before the parliament. It is not just as a result of some executive investigation or administrative determination. Certainly, the senior judges have to come back here.

We are now introducing a process where one would expect that, if there were to be a process to deal with judges who do not act in a fit manner in the course of their duties—namely, people might bully witnesses, refuse or fail to disclose if they have a conflict of interest, sleep with a witness, talk to juries themselves, not write their judgements on time, we can all think of examples where we would say that that conduct was either deserving of some counselling or support across to an invitation to resign, depending on how severe it might be—when we start to look at any other conduct it raises the question of whether the fear of that disclosure (for example, behaviour in a social setting outside of their judicial duties) would cause them to be concerned about their tenure.

That raises the question of how far we go in having what is ostensibly an independent regime to deal with bad behaviour of judges. Has it crossed the line into causing judges to fall into line for fear that some act they may have traversed, which might be socially embarrassing, if I can put like that, but not a criminal activity, would cause them to be fearful of this process?

I am not suggesting that will happen, that there will be situations where it would be unfairly used to cause people to rush off and sign their resignation letter to the Attorney for fear of there being disclosure not necessarily of improper conduct but indiscreet conduct at least, or whether that has actually occurred in the New Zealand example, which has operated for some years. I see this as a process which, hopefully, and as the Attorney says, is going to be more an instrument that will help to ensure judges carry out their judicial duties on time and, probably, maintain that standard in the community that they ought to enjoy, and which is not interfered with by us as a parliament or by the Attorney as part of the executive.

I understand why the government has gone so broadly. In other words, if it is good enough for lawyers it is good enough for judges. I hear that point, but judges are different, governors are different. I am not suggesting that you are going to have a code of conduct published soon or a commissioner appointed for the discipline of governors, but I make the point that certain offices are independent and should remain independent; they should not be interfered with.

On our side of the house we accept that in the absence of there being any known outrage in other jurisdictions—particularly in New Zealand, given that this is the format that has been copied and the breadth of the definition is there—this is not going to be abused. I just place on the record that for me it raises some concern.

I suppose the other thing is that, if we did not have it beyond their duties as a judge—that is, if it was narrowed only to be in the confines of that—bear in mind, there is still power for judges to be brought before the parliament if they commit offences and any other unlawful behaviour. In the current situation, it seems to me there is no threat of interference with the social activities of the judge and it seems to have worked so far.

I am sure the Attorney would be aware of situations where there is behaviour of a judicial officer outside of their duties as a judge, during working hours so to speak, which he or I might think is perhaps not really appropriate if the judiciary want to continue to have a high standing in the public eye, but that is a fairly subjective assessment and our views may not be such that justify interfering with their right to work and their right to be able to operate without fear of interference by executive or, in this case, someone who is going to be appointed by executive, whether it is the commissioner or a panel.

So, I say my piece about it. I am concerned about the breadth of what we are approving here, but I suppose one way of remedying that is that, if there were an exercising of this by someone who was a commissioner or by the Attorney or any of his successors that I would consider to be an abuse of that, rest assured, we would be back in here pretty quickly.

The Hon. J.R. RAU: Can I just say to the member for Bragg, I actually share her concerns about this. To be utterly frank with everybody, if I had not been through the experience of being on the receiving end of a great deal of vitriol and various other things apropos of the Eugene McGee matter, I may not have taken the view that I have taken in this. I do agree with the point made by the member for Bragg. We do not want judges who, at their birthday party at The Feathers, drop a drink near the bar and they are snapped up on Facebook and the next thing you know they are being pilloried for being a naughty boy or girl out and about. I totally agree how absurd that would be and how unsatisfactory that would be. I, like the member for Bragg, am concerned about that matter and, if we were in the position where the member for Bragg between the houses came back and said, 'Look, we want that out,' I would entertain that conversation if that were necessary.

But can I make two points, and I invite the member for Bragg to consider these over the interval between here and the other place? The first one is this. If you look at section 16(1)(b), which is the section which deals with the dismissal of a complaint, in particular, I read, 'The Commissioner must dismiss the complaint if he or she is of the opinion that' and then you go to (1)(b) 'the complaint has no bearing on judicial functions or judicial duties'.

I know that does not completely address the matter the member for Bragg has raised but it goes some way in the sense that one might argue a bit of a slip-up at The Feathers does not necessarily constitute something that has bearing on a judicial function, whereas you could say pretty clearly the Marcus Einfeld example would. I share the member's concerns and I am happy to keep this dialogue going about that. The only other point I would make is that that provision needs to be seen in another context as well, and that is in the context of section 27C, because section 27C is the bit of this legislation where we have empowered the head of jurisdiction—

Ms Chapman: Sorry, which section?

The Hon. J.R. RAU: Section 27C which is in schedule 1. This is the bit where we have empowered the head of jurisdiction and we have more or less mirrored the Federal Court rules. If you go to 27C, particularly over the page to (2)(b), it goes through what the head of jurisdiction might be.

This is more pertinent, perhaps, to the question about health issues, but you see that the head of jurisdiction may, amongst other things, say, 'I think maybe you should go to the doctor and find out whether you are suffering from some issue that requires attention,' or whatever the case might be. It would be the case that a judicial officer who then refused to cooperate with their head of jurisdiction, which does not involve me as Attorney or anyone else from the executive branch managing that person at all—the failure by a judicial officer to make reasonable compliance with a request or direction from their head of jurisdiction itself would be a matter which should form the substance of a complaint.

I think the fear the member for Bragg has expressed about interference from the executive branch is largely addressed by 27C, which clearly says that the management of these people is not the job of the Attorney-General, it is the job of the head of jurisdiction. As to the first point made by the member for Bragg, I do understand her point. I think it is a really difficult balancing point and, in my own view, if we had not been through the crucible of the McGee matter, we probably would not have turned our minds to this, except perhaps for Mr Einfeld.

Clause as amended passed.

Clause 5 passed.

Clause 6.

Ms CHAPMAN: I refer to part 2, proposed section 6, which is on page 5. I refer to proposed section 6(1)(b), 'to perform any prescribed functions'. Apart from being a complaints officer—and we understand that process—what else does the Attorney have in mind, particularly as you already have a proposed panel to deal with advice to you?

The Hon. J.R. RAU: I am advised that, if one looks around Australia and at New South Wales—which admittedly has a slightly different model and a much more expensive model—one of the other functions they discharge is that they have a role in prescribing judicial education activities and in assisting with the preparation of bench books. One of the other amendments that I think I have put forward indicates that I should not be doing these things. If you look at my amendment No. 8 to clause 35, which is in the new bundle, it is meant to make it clear that, if there were to be any additional functions conferred on the commissioner, or an intention to do so, that would be only in circumstances where there had been consultation with the Chief Justice or the Chief Judge.

Ms CHAPMAN: I appreciate that, and I have had the benefit of Mr Evans of your office indicating your foreshadowed amendment No. 8 and the reasons for doing so. Whilst this work may be meritorious, under this model we are going to have a judicial conduct panel and one of their functions is to not only inquire into these but also give advice. Perhaps I misunderstood that position.

The Hon. J.R. RAU: Can I point out also that, of course, with any of these functions, not only would we have to consult with the heads of jurisdiction before we contemplated it but also, because it would be done by regulation, it would be disallowable.

Ms CHAPMAN: That was going to be my question when we came to amendment No. 8, Attorney, but I am happy to ask it now. If we jump ahead to clause 35, page 20, I will ask it now, under the regulation power. It is a bit of a moving feast, how we draft these catch-all regulation clauses but, basically, the regulations give you power to confer functions on the commissioner, for the reasons we have discussed, and you are proposing to amend that to say that it is to be after you have consulted with the Chief Judge or Chief Justice, as it might apply. It prescribes the fees—I would hate to think what they are.

It says here that the regulations may be of general application or varied, and that is pretty much standard, and '(b) provide that a matter or thing in respect of which regulations may be made is to be determined according to the discretion of the Attorney-General or the Commissioner.' I am not quite sure what that means. I am happy to wait until you get to it if you want to, but it just seems to me that that is something new.

The Hon. J.R. RAU: I am advised this is a drafting matter, a technical matter. Unless there is expressly the power to give a discretion within the regulations, the regulations cannot give a discretion. You could not have a regulation empowering a discretionary function upon anybody unless the statute expressly said the regulation-making power was sufficiently broad to contemplate it conferring a discretionary power by regulation.

Ms CHAPMAN: I am sure that is right—I totally accept that—but it raises the question of why you need to have it at all. You have a power to make regulations under this and they are disallowable through this parliament. Why are we adding to that a discretionary power of you and/or the commissioner?

The Hon. J.R. RAU: An example I am offered (which I think is, with respect, a very good one) is if the regulations were to say that the commissioner could have some role with respect to education, absent this, it would be necessary for, in effect, a regulation to set out perhaps even a syllabus rather than leaving some elements to the discretion of the commissioner. The regulation might say education in respect of conflicts of interest, or something of that nature, but, in terms of the fine grain colouring in, that would not have to be in the regulation. That would be a matter that could be given to the discretion of the commissioner. If we do not give that discretion, arguably, you might have to, literally, by regulation, prescribe everything. I think it is a practical way of dealing with these matters.

Ms CHAPMAN: I have not seen it elsewhere and it may be that it shows up more often than I notice it but, where there is a role for counselling or educative aspects of a disciplinary process, it seems to me we do not give discretions to those parties to be able to direct as they wish. We only give a discretion in the regulations if there is a form of conduct management or re-education or training. We give them that in their tool kit of things that they can do with judicial officers, in this case, who pass across the line of acceptability.

If you are saying we have to be able to say we need to have this in the act to enable them to have a discretion on the regulations as to what type of counselling they can direct—in other words, alcohol consumption, anger management, bullying witnesses in the courtroom—I just cannot see how that educative curricula has to have a provision in a general term for a regulation that just leaves it in the discretion of the commissioner.

If it is to be to undertake courses when we look back as part of this counselling role, which I think somewhere here included counselling in respect of personal behaviour or something of that nature, then it seems to me that that would deal with it. We do not need to be giving them this carte blanche. I would ask that you would at least consider that during the houses as to how we might tidy that up, but if it is commonplace and I have missed it, then I understand.

Clause passed.

Clauses 7 to 11 passed.

Clause 12.

The Hon. J.R. RAU: I move:

Amendment No 3 [DepPrem–1]—

Page 9, line 35 [clause 12(3)]—After 'notice to' insert 'the judicial officer and'

Amendment carried; clause as amended passed.

Clause 13.

The Hon. J.R. RAU: I move:

Amendment No 4 [DepPrem–1]—

Page 10, line 25 [clause 13(3)]—Delete 'must' and substitute 'may'

Amendment carried.

The Hon. J.R. RAU: I move:

Amendment No 5 [DepPrem–1]—

Page 10, after line 34—Insert:

(5) Subject to sections 13A and 14, the Commissioner must conduct a preliminary examination as efficiently and expeditiously as is practicable.

Amendment carried; clause as amended passed.

New clause 13A.

The Hon. J.R. RAU: I move:

Amendment No 6 [DepPrem–1]—

New clause, page 10, after line 34—Insert:

13A—Request to postpone consideration of complaint

If a complaint under section 12(1) relating to a judicial officer is made during the course of a hearing conducted by the judicial officer (whether alone or with others)—

(a) the judicial officer may, by notice in writing to the Commissioner, request that consideration of the complaint under this Act be postponed until the hearing has been completed; and

(b) the Commissioner must, if satisfied that consideration of the complaint could in any way disrupt or influence the conduct of the hearing, postpone consideration of the complaint in accordance with the request.

New clause inserted.

Clauses 14 and 15 passed.

Clause 16.

The Hon. J.R. RAU: I move:

Amendment No 7 [DepPrem–1]—

Page 12, lines 2 and 3 [clause 16(1)(c)]—Delete paragraph (c) and substitute:

(c) the complaint—

(i) has been made for an improper purpose (including an attempt to harass or intimidate a judicial officer in the appropriate exercise of his or her duties); or

(ii) is otherwise frivolous, vexatious, or not in good faith; or

Amendment carried; clause as amended passed.

Clauses 17 to 34 passed.

Clause 35.

The Hon. J.R. RAU: I move:

Amendment No 8 [DepPrem–1]—

Page 20, after line 14—Insert:

(4) The regulations must not confer functions on the Commissioner in accordance with subsection (2)(a) unless the Attorney-General has consulted the Chief Justice of the Supreme Court in relation to the proposed conferral of functions and the Commissioner must, in the exercise of any functions so conferred, consult with the Chief Justice of the Supreme Court, the Chief Judge of the District Court and the Chief Magistrate.

Amendment carried; clause as amended passed.

Schedule 1.

The Hon. J.R. RAU: I move:

Amendment No 9 [DepPrem–1]—

Schedule 1, page 21, line 4 [Schedule 1, clause 3, inserted section 27A, definition of judicial office, (c)]—

After 'that may' insert 'only'

Amendment carried.

The Hon. J.R. RAU: I move:

Amendment No 10 [DepPrem–1]—

Schedule 1, page 21, line 8 [Schedule 1, clause 3, inserted section 27A, definition of judicial office, (e)]—

After 'that may' insert 'only'

Amendment carried; schedule as amended passed.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Housing and Urban Development, Minister for Industrial Relations, Minister for Child Protection Reform) (16:33): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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