Judicial Commission Bill 2014FILE/571039bi1.docx · Web viewA Bill for an Act to establish the...

Judicial Commission Bill 2014

TABLE OF PROVISIONSClause Page

PART 1—PRELIMINARY 1

1 Purposes 12 Commencement 23 Definitions 34 Disclosure considerations 11

PART 2—COMPLAINTS AND REFERRALS 12

Division 1—Making complaints and referrals 12

5 Complaints 126 Complaints by professional bodies 127 Referrals by head of jurisdiction 138 Referrals by Attorney-General 139 Referrals by the IBAC 1310 Complaint or referral may be made despite other proceeding 1411 Notification to the IBAC does not affect complaint or referral 1412 Officer concerned not required to disqualify themselves from

proceeding 15

Division 2—Consideration of complaints and referrals 15

13 Consideration of complaint or referral by Judicial Commission 1514 Summary dismissal of complaints and referrals 1515 Referral to Conduct Division 16

Division 3—Notifications by Judicial Commission 16

16 Notification of Attorney-General 1617 Notification of complainant 1618 Content of notice relating to assessable disclosures 16

PART 3—INVESTIGATIONS BY CONDUCT DIVISION 17

Division 1—Conduct Division procedure in investigating complaints and referrals 17

19 Duty to investigate 1720 Withdrawal of complaints and referrals to be determined by

Conduct Division 17

PARLIAMENT OF VICTORIA

571039B.I-25/6/2014 BILL LA INTRODUCTION 25/6/20141

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21 Outcome of investigation 1822 Conduct Division must dismiss certain complaints or referrals 1923 Conduct Division must adjourn investigation of certain

complaints or referrals 2024 Constitution of Conduct Division for making decisions 2125 Consultation with head of jurisdiction 2226 Requirements before making a report 2227 Report to Governor 2328 Report to Attorney-General 2329 Referral to nominated head of jurisdiction or nominated person 2430 Content of report relating to assessable disclosures 25

Division 2—Notifications by Conduct Division 25

31 Notification of Judicial Commission 2532 Notification of head of jurisdiction 2533 Notification of officer concerned 2634 Notification of Attorney-General 2635 Notification of complainant 2736 Content of notice relating to assessable disclosures 27

Division 3—Mandatory notifications to the IBAC and the Victorian Inspectorate 28

37 Mandatory notification of corrupt conduct to the IBAC 2838 Mandatory notification to the Victorian Inspectorate 28

PART 4—INVESTIGATION POWERS AND PROCEDURES 30

Division 1—General powers and procedures of Conduct Division 30

39 Conduct Division proceedings 3040 General requirements 3041 Hearings and written submissions 3042 Request for further information 3143 Powers as to court or tribunal documents 3144 Requirement to undergo medical examination 3245 Effect of failure to undergo medical examination 3346 Power to adjourn investigation 3347 Considerations when matter the subject of other investigation

or legal proceedings 3448 Extension or referral of matter 34

Division 2—Hearings 35

49 Notice of hearing 3550 Hearing procedure 3551 Offence to be present at closed hearing 3652 Conduct Division may give directions 3753 Protection of lawyers and witnesses 37

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54 Direction prohibiting publication of material 3855 Duration of direction prohibiting publication of material 3956 Notification of certain matters to the Judicial Commission 4057 Notification of certain matters to the Victorian Inspectorate 4158 Copies of particular guidelines to be provided to Victorian

Inspectorate 4159 Request for information by the Victorian Inspectorate 41

Division 3—Additional powers 42

60 Power to require production of documents 4261 Witness summons 4262 Content and form of witness summons 4463 Witness summons directed to person under 16 years 4464 Service of witness summons 4465 Supreme Court may order service by other means 4566 Witness already held in custody 4567 Specific provisions relating to witnesses 4668 Actions to be taken before questioning of a witness or

requiring production of a document or other thing 4769 Power to examine on oath or affirmation 4870 Offence for summoned witness to fail to attend hearing 4971 Offence for summoned witness to refuse or fail to answer

question 5072 Offence for summoned witness to fail to produce document

or thing 5073 Offence for summoned witness to fail to take oath or make

affirmation 5074 Allowances for compliance with witness summons 50

Division 4—Search warrant powers 51

75 Search warrant 5176 Search warrant in relation to court or VCAT premises 5277 Procedure for executing a search warrant 5378 Copies or receipts to be given for documents or other things 5479 Return of documents and other things 5580 Assistance in executing search warrants 55

Division 5—Privilege 56

81 Privilege against self-incrimination abrogated 5682 Journalist privilege does not apply 5883 Procedure for determining claims of privilege—notice

requiring production or witness summons 5884 Procedure for determining privilege—search warrants 6085 Application to Supreme Court to determine privilege 6186 Determination of claim 6287 Offence to open sealed envelope or have access to document

or thing 63

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PART 5—FURTHER PROVISIONS FOR INVESTIGATIONS 65

Division 1—Standing down 65

88 Standing down of judicial officer or non-judicial member of VCAT by principal head of jurisdiction 65

89 Standing down of officer concerned on recommendation of Conduct Division 66

90 Effect of standing down 6891 Effect of standing down head of jurisdiction 6992 Consultation requirements 6993 Alteration to or revocation of standing down 7094 Reinstatement of officers concerned 71

Division 2—Relevant council of judges procedure for standing down determination 72

95 Determination by relevant council of judges 7296 Meeting of relevant council of judges to make determination 72

Division 3—Process for medical examinations 73

97 Conduct of medical examination 7398 Report after medical examination 7399 Further medical report may be provided by officer 74

Division 4—Nominating head of jurisdiction or other person 74

100 Power to nominate additional head of jurisdiction 74101 Power to nominate person for Chief Justice, Chief Judge or

Chief Magistrate 75

Division 5—Statement of reasons 76

102 Person not entitled to statement of reasons 76

Division 6—Costs 76

103 Costs 76

PART 6—ACTION TO BE TAKEN ON CONDUCT DIVISION REFERRAL 77

Division 1—Preliminary 77

104 Definitions 77105 Functions of head of jurisdiction not limited 77

Division 2—Referrals and reports to nominated head of jurisdiction or nominated person 77

106 Actions on receiving Conduct Division report 77107 Matters to be taken into account in making a decision as to

action 78

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108 Procedures on making a decision as to action 78109 Where there is more than one nominated head of jurisdiction 78110 Notice of action to be given to complainant or referrer 79

Division 3—Report as to removal of non-judicial member of VCAT 79

111 Power to recommend removal of non-judicial member of VCAT on receiving report 79

112 Power of Governor in Council to remove non-judicial member of VCAT 80

PART 7—ADMINISTRATION 81

Division 1—The Judicial Commission and the Board 81

113 Delegation by Judicial Commission 81114 Acting judicial members of the Board 81115 Acting appointed members of the Board 82116 Meetings of the Board 83117 Decisions of the Board 84118 Proceedings of the Board 84

Division 2—Director and staff of Judicial Commission 84

119 Appointment of Director 84120 Functions of Director 85121 Vacancy in office of Director 85122 Removal of Director from office 86123 Delegation by Director 86124 Acting Director 86125 Employees of Judicial Commission 87126 Engagement of consultants 87

Division 3—Conduct Division 87

127 Assistance to Conduct Division by Judicial Commission officers 87

128 Delegation by Conduct Division 88

Division 4—Guidelines and reports 88

129 Guidelines 88130 Annual report of the Judicial Commission 89

Division 5—Miscellaneous 92

131 Immunity of members of the Board 92132 Immunity of member of Conduct Division 93133 Use and disclosure of information 93134 Release of information to public 94

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PART 8—GENERAL PROVISIONS 96

135 Vexatious complainants 96136 Offence to make statement which is false or misleading 97137 Disclosure of confidential information 97138 Requests for information authorised by law 98139 Retention of information 98140 Exemption from Freedom of Information Act 1982 98141 Exemption from Health Records Act 2001 99142 Exemption from Information Privacy Act 2000 99143 Regulations 99144 Savings and transitional provisions 100

PART 9—AMENDMENT OF OTHER ACTS 101

Division 1—Amendment of Constitution Act 1975 101

145 Constitution Act 1975—Repeal of section 81A(2) 101146 Constitution Act 1975—Amendment of section 83 101147 New Division heading inserted 102148 Constitution Act 1975—Amendment of section 87AAA 102149 New Division heading inserted 105150 Constitution Act 1975—Amendment of section 87AAB(2) 105151 Constitution Act 1975—Repeal of sections 87AAC

to 87AAH 105152 New Divisions 3 to 6 of Part IIIAA inserted 105

Division 3—Judicial Commission of Victoria 105

87AAK Establishment of Judicial Commission 10587AAL Functions of Judicial Commission 106

Division 4—Board of Judicial Commission 107

87AAM Board of Judicial Commission 10787AAN Judicial members of the Board 10787AAO Appointed members of the Board 10887AAP Suspension of appointed member 10987AAQ Cessation of appointment of appointed member 110

Division 5—Conduct Division of the Judicial Commission 111

87AAR Establishment of Conduct Division 11187AAS Functions of Conduct Division 11287AAT Conduct division panels 11287AAU Membership of conduct division panel 11387AAV Establishment of pool 11587AAW Appointment of persons to pool 11587AAX Conditions for members of pool 11687AAY Cessation of appointment or removal from pool 117

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Division 2—Amendment of Court Services Victoria Act 2014 119

153 Definitions 119154 Function of the Court Services Victoria 119155 Functions and powers 119

Division 3—Amendment of Independent Broad-based Anti-corruption Commission Act 2011 120

156 Definitions 120157 Referral of complaint or notification for investigation by

another person or body 121158 Provision to the IBAC of information about referred

complaint or notification 121159 Withdrawal of referred complaint or notification 121

Division 4—Amendment of Protected Disclosure Act 2012 122

160 Definitions 122161 Disclosure of improper conduct or detrimental action 123162 Disclosures that must be made to the IBAC 123163 Disclosures that must be made to the IBAC or the Victorian

Inspectorate 123164 New section 16A inserted 123

16A Disclosures that must be made to the IBAC or the Judicial Commission 123

165 Notification of disclosure to the IBAC by other entities 124166 Circumstances in which information may be disclosed 124167 Review of procedures 125168 Review of procedures established by the IBAC and the

Ombudsman 125169 Offence to disclose certain advice 125

Division 5—Amendment of Victorian Inspectorate Act 2011 126

170 Definitions 126171 Objects of Act 127172 Functions of the Victorian Inspectorate 127173 New section 85A inserted 127

85A Recommendation to the Judicial Commission 127174 Recommendations must not contain information likely to

identify person who makes an assessable disclosure 128175 Special reports 128176 Outcome of investigation 129177 Matters to be included in annual report 129178 Exemption from Freedom of Information Act 1982 130

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Division 6—Amendment of Other Acts 130

179 Children, Youth and Families Act 2005—Definitions 130180 Children, Youth and Families Act 2005—New section 509A

inserted 130509A Administrative responsibility of President 130

181 Children, Youth and Families Act 2005—Repeal of sections 542G to 542I 131

182 Coroners Act 2008—New section 95A inserted 13195A Administrative responsibility of State Coroner 131

183 Coroners Act 2008—Repeal of sections 102G to 102I 131184 County Court Act 1958—New sections 8E and 8F inserted 131

8E Administrative responsibility of Chief Judge 1318F Assignment of duties by Chief Judge 132

185 County Court Act 1958—Provision for pensions to County Court judges and their partners 132

186 County Court Act 1958—Pension entitlements of associate judges, their partners and children 133

187 County Court Act 1958—Repeals 133188 County Court Act 1958—Council of Judges 133189 Magistrates' Court Act 1989—Section 9B(2) repealed 133190 Magistrates' Court Act 1989—New section 12A inserted 134

12A Administrative responsibility of Chief Magistrate 134191 Magistrates' Court Act 1989—Council of magistrates 134192 Magistrates' Court Act 1989—Sections 16F to 16H repealed 134193 Ombudsman Act 1973 135194 Parliamentary Committees Act 2003 135195 Public Administration Act 2004 137196 Supreme Court Act 1986—Amendment of section 16 137197 Supreme Court Act 1986—Amendment of section 28 137198 Supreme Court Act 1986—New Division inserted 138

28AAA Administrative responsibility of Chief Justice 13828AAB Assignment of duties by Chief Justice 138

199 Supreme Court Act 1986—Pension entitlements of Associate Judges, their partners and children 138

200 Supreme Court Act 1986—Sections 113I, 113J and 113K repealed 139

201 Victorian Civil and Administrative Tribunal Act 1998 139

Division 7—Amendments consequential on Legal Profession Uniform Law Application Act 2014 139

202 Amendments consequential on Legal Profession Uniform Law Application Act 2014 139

Division 8—Repeal of Part 139

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203 Repeal of Part 139__________________

SCHEDULES 140

SCHEDULE 1—Integrity Bodies 140

SCHEDULE 2—Savings and Transitional Provisions 141

1 Matters referred under the Constitution Act 1975 1412 Application of Act to conduct occurring before

commencement of section 5 or 6 141═══════════════

ENDNOTES 142

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A Bill for an Act to establish the Judicial Commission of Victoria under the Constitution Act 1975, to provide for investigations into

judicial officers and non-judicial members of VCAT, to make consequential and other amendments to other Acts and for other

purposes.

The Parliament of Victoria enacts:

PART 1—PRELIMINARY

1 Purposes

The main purposes of this Act are—

(a) to establish the Judicial Commission of Victoria under the Constitution Act 1975; and

(b) to provide for investigations into judicial officers and non-judicial members of VCAT; and

Introduced in the Assembly



PARLIAMENT OF VICTORIA

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(c) to make consequential and other amendments to other Acts.

2 Commencement

(1) Subject to this section, this Act (other than this section and sections 1 and 202) comes into operation on a day or days to be proclaimed.

(2) This section and section 1 come into operation on the day after the day on which this Act receives the Royal Assent.

(3) Section 202 comes into operation on the later of—

(a) the day that section 3 comes into operation; or

(b) the day that section 158 of the Legal Profession Uniform Law Application Act 2014 comes into operation.

(4) If a provision of this Act (other than section 202) does not come into operation before 1 June 2015, it comes into operation on that day.

3 Definitions

In this Act—

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s. 2s. 3

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additional head of jurisdiction means—

(a) the President of VCAT for a judicial officer (other than the President of VCAT) appointed or assigned to VCAT; or

(b) the President of the Children's Court for a magistrate or a reserve magistrate who has been appointed or assigned to that Court; or

(c) the State Coroner for a magistrate or a reserve magistrate who has been appointed or assigned to the Coroners Court;

appointed member, of the Board, has the same meaning as in the Constitution Act 1975;

assessable disclosure has the same meaning as in the Protected Disclosure Act 2012;

associate judge means—

(a) in relation to the Supreme Court, an Associate Judge appointed under section 104 of the Supreme Court Act 1986; or

(b) in relation to the County Court, a person appointed under section 17A of the County Court Act 1958;

Australian court means any of the following—

(a) a Victorian court;

(b) a court of another State;

(c) a court of a Territory;

(d) the High Court or another court of the Commonwealth;

Australian lawyer has the same meaning as in the Legal Profession Act 2004;

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Australian legal practitioner has the same meaning as in the Legal Profession Act 2004;

Board has the same meaning as in the Constitution Act 1975;

coercive power means, in relation to the Conduct Division—

(a) a power of the Conduct Division to require the production of any document or thing under section 60; or

(b) a power of the Conduct Division to issue a witness summons under section 61; or

(c) a power of a member of the Conduct Division to examine a person under oath or affirmation under section 69; or

(d) the power under section 75;

complaint means a complaint made under section 5 or 6;

Conduct Division has the same meaning as in the Constitution Act 1975;

conduct division panel has the same meaning as in the Constitution Act 1975;

Conduct Division report—see section 104;

corrupt conduct has the meaning given by section 4 of the Independent Broad-based Anti-corruption Commission Act 2011;

Court Services Victoria has the same meaning as in the Court Services Victoria Act 2014;

Director means the Director of the Judicial Commission appointed by the Chief Executive Officer of Court Services Victoria under section 119;

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disclosure considerations has the meaning given by section 4;

function includes duty and power;

head of jurisdiction, in relation to a judicial officer or non-judicial member of VCAT, means a person who is a principal head of jurisdiction or an additional head of jurisdiction for that officer;

IBAC means the Independent Broad-based Anti-corruption Commission established by section 12 of the Independent Broad-based Anti-corruption Commission Act 2011;

IBAC personnel means—

(a) an IBAC officer within the meaning of section 3 of the Independent Broad-based Anti-corruption Commission Act 2011; or

(b) a person who was formerly an IBAC Officer within the meaning of that Act;

improper conduct has the meaning given by section 4 of the Protected Disclosure Act 2012;

integrity body means a person or body specified in Schedule 1;

Judicial Commission has the same meaning as in the Constitution Act 1975;

Judicial Commission officer means—

(a) a member or acting member of the Board; or

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(b) the Director or Acting Director of the Judicial Commission; or

(c) an employee referred to in section 125(1); or

(e) a person engaged by the Judicial Commission under section 126;

judicial member, of the Board, has the same meaning as in the Constitution Act 1975;

judicial officer has the same meaning as in the Constitution Act 1975;

judicial registrar means a judicial registrar of the Supreme Court, the County Court, the Magistrates' Court, the Children's Court or the Coroners Court;

law enforcement agency means—

(a) Victoria Police; or

(b) the Victorian WorkCover Authority; or

(c) the Environment Protection Authority; or

(d) the Australian Federal Police; or

(e) the police force or police service (however described) of another State or a Territory; or

(f) any other prescribed person or body which has a law enforcement function;

Law Institute means the Law Institute of Victoria Limited ACN 075 475 731;

medical examination means any physical, psychological, psychiatric or other medical examination;

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medical test includes diagnostic imaging and any test that requires the provision by a person of blood, bodily fluids or human tissue;

member, in relation to VCAT, has the same meaning as in section 3 of the Victorian Civil and Administrative Tribunal Act 1998;

nominated head of jurisdiction means—

(a) if the officer concerned is not a head of jurisdiction, the principal head of jurisdiction for that officer and, if an additional head of jurisdiction has been nominated under section 100, that additional head of jurisdiction; or

(b) if the officer concerned is the President of VCAT, the Chief Justice; or

(c) if the officer concerned is the President of the Children's Court or the State Coroner, the Chief Judge;

nominated person means, if the officer concerned is the Chief Justice, the Chief Judge or the Chief Magistrate, the person who has been nominated under section 101;

non-judicial member of VCAT means a member of VCAT who is not a judicial officer;

officer concerned, in relation to a complaint or referral, means the judicial officer or non-judicial member of VCAT in respect of whom the complaint or referral is made;

perform a function includes exercise a power;

police gaol has the same meaning as in the Corrections Act 1986;

police officer has the same meaning as in the Victoria Police Act 2013;

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principal head of jurisdiction means—

(a) the Chief Justice for a judge (other than the Chief Justice), a reserve judge, an associate judge, a reserve associate judge or a judicial registrar of the Supreme Court; or

(b) the Chief Judge for a judge (other than the Chief Judge), a reserve judge, an associate judge, a reserve associate judge or a judicial registrar of the County Court; or

(c) the Chief Magistrate for a magistrate (other than the Chief Magistrate), a reserve magistrate or a judicial registrar of the Magistrates' Court; or

(d) the President of the Children's Court for a judicial registrar of that court; or

(e) the State Coroner for—

(i) a judicial registrar of the Coroners Court; or

(ii) a coroner who is not a judge of the County Court, a magistrate or a reserve magistrate; or

(f) the President of VCAT for a non-judicial member of VCAT;

prison means—

(a) a prison within the meaning of section 3(1) of the Corrections Act 1986; or

(b) a youth justice facility within the meaning of section 482A of the Children, Youth and Families Act 2005;

privilege means—

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(a) any privilege that a person is entitled to claim in any proceedings before a court or tribunal, other than—

(i) the privilege provided for in Division 1C of Part 3.10 of the Evidence Act 2008; or

(ii) the privilege against self-incrimination; or

(b) public interest immunity;

protected disclosure complaint means a disclosure that the IBAC has determined under section 26 of the Protected Disclosure Act 2012 to be a protected disclosure complaint;

referral means—

(a) a referral by a head of jurisdiction under section 7; or

(b) a referral by the Attorney-General under section 8;

registered medical practitioner means a person registered under the Health Practitioner Regulation National Law to practise in the medical profession (other than a student);

relevant council of judges means—

(a) in relation to the Chief Justice and the President of VCAT, the Council of Judges within the meaning of section 28 of the Supreme Court Act 1986; or

(b) in relation to the Chief Judge, State Coroner and the President of the Children's Court, the Council of the Judges within the meaning of

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section 87 of the County Court Act 1958; or

(c) in relation to the Chief Magistrate, the Council of the magistrates within the meaning of section 15 of the Magistrates' Court Act 1989;

staff of the Judicial Commission means—

(a) the employees referred to in section 125; and

(b) the persons engaged by the Judicial Commission under section 126;

vexatious complainant means a person in respect of whom a declaration under section 135 is in force;

Victoria Police has the same meaning as in the Victoria Police Act 2013;

Victorian Bar means Victorian Bar Inc, an association incorporated under the Associations Incorporation Reform Act 2012;

Victorian court means any of the following—

(a) the Supreme Court;

(b) the County Court;

(c) the Magistrates' Court;

(d) the Children's Court;

(e) the Coroners Court;

witness summons means a summons issued under section 61.

4 Disclosure considerations

In this Act, a reference to the disclosure considerations is a reference to the following—

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(a) ensuring a transparent and accountable process for investigating the performance of functions of judicial officers or non-judicial members of VCAT;

(b) maintaining present and future public confidence in the Victorian courts, VCAT and the Victims of Crime Assistance Tribunal established under the Victims of Crime Assistance Act 1996;

(c) protecting the privacy of an individual;

(d) preventing disruption to the orderly administration of justice.

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PART 2—COMPLAINTS AND REFERRALS

Division 1—Making complaints and referrals

5 Complaints

A person may make a complaint to the Judicial Commission about the conduct or capacity of a judicial officer or a non-judicial member of VCAT.Note

The guidelines made under section 129 may set out the procedure for making a complaint.

6 Complaints by professional bodies

(1) The Law Institute may make a complaint to the Judicial Commission on behalf of a member of the Law Institute about the conduct or capacity of a judicial officer or a non-judicial member of VCAT.

(2) The Victorian Bar may make a complaint to the Judicial Commission on behalf of a member of the Victorian Bar about the conduct or capacity of a judicial officer or a non-judicial member of VCAT.Note

The guidelines made under section 129 may set out the procedure for a professional body making a complaint on behalf of a person.

(3) The Law Institute or the Victorian Bar—

(a) is not required to disclose the identity of the person on whose behalf a complaint is made under this section; and

(b) is taken to be the complainant if the Law Institute or the Victorian Bar make a complaint under this section.

s. 5Part 2—Complaints and Referrals



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7 Referrals by head of jurisdiction

(1) A head of jurisdiction of a court may make a referral to the Judicial Commission about the conduct or capacity of a judicial officer of the court.

(2) The President of VCAT may make a referral to the Judicial Commission about the conduct or capacity of a member of VCAT.Note

The guidelines made under section 129 may set out the procedure for making a referral.

8 Referrals by Attorney-General

The Attorney-General may make a referral to the Judicial Commission about the conduct or capacity of a judicial officer or a non-judicial member of VCAT.Note

The guidelines made under section 129 may set out the procedure for making a referral.

9 Referrals by the IBAC

(1) A complaint or notification to the IBAC that is referred to the Judicial Commission under section 73 of the Independent Broad-based Anti-corruption Commission Act 2011 is taken to be a complaint made to the Judicial Commission.Note

This section also applies to protected disclosure complaints that are referred to the Judicial Commission by IBAC—see section 7 of the Independent Broad-based Anti-corruption Commission Act 2011.

(2) For the purposes of dealing with a complaint referred to in subsection (1), the following is taken to be the complainant—




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(a) in the case of a complaint to the IBAC, the person who made the complaint or, if the complaint is a protected disclosure complaint, the person who made the disclosure;

(b) in the case of a notification to the IBAC, the IBAC.

10 Complaint or referral may be made despite other proceeding

A complaint or referral may be made even though the matter is or has been—

(a) the subject of an investigation by Victoria Police or any other law enforcement agency, a regulatory body or an integrity body; or

(b) the subject of legal proceedings in an Australian court or a tribunal in Australia.

11 Notification to the IBAC does not affect complaint or referral

A notification to the IBAC under section 21 of the Protected Disclosure Act 2012 of a complaint or referral made under this Act does not affect the following powers of the Judicial Commission and Conduct Division in respect of that complaint or referral—

(a) the power of the Judicial Commission or the Conduct Division to dismiss or refer the complaint or referral;

(b) the power of the Conduct Division to provide a report in respect of that complaint or referral.




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12 Officer concerned not required to disqualify themselves from proceeding

For the avoidance of doubt, the fact that a complaint or referral has been or is made against a judicial officer or a non-judicial member of VCAT who is conducting a proceeding does not, of itself, require the officer concerned to disqualify themselves from the proceeding.

Division 2—Consideration of complaints and referrals

13 Consideration of complaint or referral by Judicial Commission

The Judicial Commission may consider a complaint or referral for the purposes of determining—

(a) the identity of the officer concerned; and

(b) whether the complaint or referral relates to a judicial officer or a non-judicial member of VCAT; and

(c) in the case of a complaint, whether the person who made the complaint is a vexatious complainant; and

(d) if the matter is to be referred to the Conduct Division under section 15, how the Conduct Division will be constituted for the complaint or referral concerned.

14 Summary dismissal of complaints and referrals

The Judicial Commission must dismiss a complaint or referral if—

(a) the complaint is made by a vexatious complainant; or

(b) the complaint or referral does not relate to a judicial officer or a non-judicial member of VCAT; or




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(c) the complaint relates directly and solely to the merits or lawfulness of a decision or procedural ruling made by the officer concerned.

15 Referral to Conduct Division

If the Judicial Commission does not dismiss a complaint or referral under section 14, the Judicial Commission must refer it to the Conduct Division.

Division 3—Notifications by Judicial Commission

16 Notification of Attorney-General

The Judicial Commission must give written notice to the Attorney-General if a referral by the Attorney-General is dismissed under section 14.

17 Notification of complainant

The Judicial Commission must give written notice to a complainant if a complaint by the complainant is dismissed under section 14.

18 Content of notice relating to assessable disclosures

The Judicial Commission must not include in a notice under this Division any information that—

(a) is likely to lead to the identification of a person who has made an assessable disclosure; and

(b) is not information to which section 53(2)(a), (c) or (d) of the Protected Disclosure Act 2012 applies.

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PART 3—INVESTIGATIONS BY CONDUCT DIVISION

Division 1—Conduct Division procedure in investigating complaints and referrals

19 Duty to investigate

(1) If a complaint or referral is referred to the Conduct Division under section 15, the Conduct Division must investigate the matter in accordance with this Part and Part 4.

(2) However, the Conduct Division must not exercise a coercive power unless the Conduct Division is satisfied that the matter being investigated could, if substantiated, amount to proved misbehaviour or incapacity such as to warrant the removal of the officer concerned from office.

20 Withdrawal of complaints and referrals to be determined by Conduct Division

(1) Subject to subsection (3), a person may seek to withdraw a complaint or referral at any time.

(2) Subject to subsection (3), if a person seeks to withdraw a complaint or referral, the Conduct Division may—

(a) take no further action on the complaint or referral; or

(b) if satisfied that it is in the public interest, continue to investigate the complaint or referral, despite the person seeking to withdraw it.

(3) A complaint that is a protected disclosure complaint may not be withdrawn.




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21 Outcome of investigation

(1) After investigating a matter, the Conduct Division must take action as set out in this section.

(2) The Conduct Division—

(a) must dismiss the matter in whole or in part, if section 22(1) or (2) applies; or

(b) must dismiss the matter in whole or in part, if satisfied that the matter has not been substantiated; or

(c) may dismiss the matter in whole or in part if section 22(3) applies.

(3) If the Conduct Division is of the opinion that facts exist that could amount to proved misbehaviour or incapacity such as to warrant the removal of the officer concerned from office, the Conduct Division must report that opinion—

(a) in the case of a judicial officer, to the Governor in accordance with section 27; or

(b) in the case of a non-judicial member of VCAT, to the Attorney-General in accordance with section 28.

Note

Section 26 imposes procedural requirements on the Conduct Division before making a report under this subsection.

(4) If the Conduct Division has not dismissed the matter under subsection (2) or made a report under subsection (3), the Conduct Division must refer the matter to the nominated head of jurisdiction or nominated person for the officer concerned in accordance with section 29.Note




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Sections 25 and 26 impose procedural requirements on the Conduct Division before making a referral under this section.

22 Conduct Division must dismiss certain complaints or referrals

(1) The Conduct Division must dismiss a complaint or referral in whole or in part unless the Conduct Division is satisfied that—

(a) the matter could, if substantiated, amount to proved misbehaviour or incapacity of the officer concerned such as to warrant the removal of the officer from office; or

(b) the matter warrants further consideration on the ground that—

(i) the matter may affect or have affected the performance of judicial or official duties by the officer; or

(ii) the conduct of the officer may have infringed the standards of conduct generally expected of judicial officers or non-judicial members of VCAT (as the case requires).

(2) The Conduct Division must dismiss a complaint or referral in whole or in part if the Conduct Division is satisfied that—

(a) the matter relates to conduct of the officer concerned alleged to have taken place before the officer was appointed as a judicial officer or non-judicial member of VCAT, being conduct that, if substantiated, could not amount to proved misbehaviour or incapacity such as to warrant the removal of the officer from office; or

(b) the matter relates solely to the merits or lawfulness of a decision or procedural ruling made by the officer concerned; or




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(c) the matter relates to the private life of the officer concerned and, if substantiated, could not be reasonably considered to affect or have affected—

(i) the performance of the officer's functions; or

(ii) the suitability of the officer to hold office as a judicial officer or non-judicial member of VCAT; or

(d) in the case of a complaint, the complaint is frivolous, vexatious or not made in good faith or is made by a vexatious complainant; or

(e) the officer concerned has resigned or retired and is no longer a judicial officer or non-judicial member of VCAT.

(3) The Conduct Division may dismiss a complaint or referral in whole or in part if the Conduct Division is satisfied that—

(a) the matter occurred at too remote a time to justify further consideration; or

(b) having regard to all the circumstances of the case, investigation or further investigation of the complaint or referral is unnecessary or unjustified.

23 Conduct Division must adjourn investigation of certain complaints or referrals

(1) Subject to subsection (2), the Conduct Division must adjourn the investigation of a complaint or referral or part of the complaint or referral if the Conduct Division is satisfied that it relates to a court or VCAT proceeding—




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(a) that is being heard by the officer concerned; or

(b) in which a judgement or decision of the officer concerned has not been handed down.

(2) The Conduct Division may investigate a complaint or referral referred to in subsection (1) if—

(a) the matter that relates to the proceeding relates solely to a delay by the officer concerned in handing down a decision in the proceeding; or

(b) having regard to the seriousness of the matter and the urgency with which it must be dealt with, the principal head of jurisdiction agrees it is appropriate that the Conduct Division deal with the matter.

(3) Subsection (1) does not prevent the Conduct Division—

(a) dismissing the complaint or referral under section 21(2)(b) or 22; or

(b) notifying the IBAC or the Victorian Inspectorate under Division 3 of the subject matter of the complaint or referral.

24 Constitution of Conduct Division for making decisions

(1) The decision on what action to take under section 21 may be made by a majority of the members of the Conduct Division as constituted for the complaint or referral concerned.

(2) A report of the Conduct Division under section 21(3) or (4) may include a majority report and a minority report.

(3) If a member of the Conduct Division becomes unavailable or unable to perform the functions of




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a member, or ceases to be a member under section 87AAY(1)(h), (i) or (j) or (2)(a), (b) or (c) of the Constitution Act 1975, or is removed as a member, the Conduct Division may—

(a) continue the investigation of the complaint or referral with 2 members; or

(b) request the Judicial Commission to appoint a replacement member.

25 Consultation with head of jurisdiction

(1) Before referring a complaint or referral to a nominated head of jurisdiction or nominated person under section 21(4), the Conduct Division must consult with any nominated head of jurisdiction or any nominated person for the officer concerned.

(2) The Conduct Division may consult with a head of jurisdiction of the officer concerned in determining whether to make any other decision in relation to, or otherwise deal with, a complaint or referral.

26 Requirements before making a report

(1) Before making a report under section 21(3) or (4), the Conduct Division must—

(a) hold a hearing under Division 2 of Part 4; or

(b) by written notice, give the officer concerned an opportunity to make written submissions to the Conduct Division.

(2) Written notice under subsection (1)(b) must—

(a) specify the time within which any submissions must be made to the Conduct Division; and

(b) advise the officer concerned of the grounds on which the complaint or referral was made.




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(3) The time specified under subsection (2)(a) must be—

(a) at least 21 days after the date of the notice; or

(b) any shorter time agreed to by the officer concerned.

(4) The opportunity to make submissions under subsection (1)(b) must include an opportunity to make submissions on any medical report that the Conduct Division intends to consider in making a report under section 21(3) or (4).

27 Report to Governor

(1) A report to the Governor under section 21(3)(a) must—

(a) report on the conduct and findings, and any conclusions, of the investigation by the Conduct Division; and

(b) state the Conduct Division's conclusion as to whether facts exist that could amount to proved misbehaviour or incapacity such as to warrant the removal of the officer concerned from office.

(2) The Conduct Division must give a copy of the report to the Attorney-General.

(3) The Attorney-General must cause a copy of the report to be laid before each House of the Parliament as soon as reasonably practicable after receiving it.

28 Report to Attorney-General

(1) A report to the Attorney-General under section 21(3)(b) must—




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(a) report on the conduct and findings, and any conclusions, of the investigation by the Conduct Division; and

(b) state the Conduct Division's conclusion as to whether facts exist that could amount to proved misbehaviour or incapacity such as to warrant the removal of the officer concerned from office.

(2) The Attorney-General must cause a copy of the report to be laid before each House of the Parliament as soon as reasonably practicable after receiving it.

29 Referral to nominated head of jurisdiction or nominated person

In referring a matter to the nominated head of jurisdiction or nominated person of the officer concerned under section 21(4), the Conduct Division must provide—

(a) a report that sets out—

(i) the findings of fact of the Conduct Division in the matter; and

(ii) the Conduct Division's assessment of the appropriateness of the conduct that is the subject of the matter; and

(iii) the Conduct Division's recommendations in relation to the future conduct of the officer concerned; and

(b) any information that the Conduct Division has that it considers may assist the nominated head of jurisdiction or nominated person to deal with the matter.




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30 Content of report relating to assessable disclosures

The Conduct Division must not include in a report under this Division any information that—



Division 2—Notifications by Conduct Division

31 Notification of Judicial Commission

(1) The Conduct Division must give the Judicial Commission written notice of the dismissal of a complaint or referral under section 21(2).

(2) A notice under subsection (1) must include the reasons for the dismissal.

(3) The Conduct Division must give the Judicial Commission a copy of a report given under section 21(3) or (4).

(4) On taking action under section 21, the Conduct Division must provide to the Judicial Commission any documents and other material in the possession of the Conduct Division relating to the action.

32 Notification of head of jurisdiction

(1) The Conduct Division must give the head of jurisdiction of the officer concerned written notice of the dismissal of a complaint or referral under section 21(2).




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(2) A notice under subsection (1) must include the reasons for the decision.

(3) The Conduct Division must give each head of jurisdiction of the officer concerned a copy of a report given under section 21(3).

(4) If the Conduct Division gives a nominated head of jurisdiction a report under section 21(4), the Conduct Division must give a copy of the report to any other head of jurisdiction of the officer concerned.

33 Notification of officer concerned

(1) The Conduct Division must give the officer concerned written notice of the dismissal of a complaint or referral under section 21(2).


(3) The Conduct Division must give the officer concerned a copy of a report given under section 21(3) or (4).

34 Notification of Attorney-General

(1) The Conduct Division must give the Attorney-General written notice of the dismissal under section 21(2) of a referral by the Attorney-General.


(3) The Conduct Division must give the Attorney-General a copy of a report given under section 21(4).

(4) Information must not be disclosed to the Attorney-General under subsection (2) if disclosure of that information would be contrary to the public interest having regard to—

(a) the disclosure considerations; and




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(b) any other relevant matter.

35 Notification of complainant

(1) The Conduct Division must give the complainant written notice of the dismissal of a complaint under section 21(2).


(3) The Conduct Division must give the complainant a copy of a report given under section 21(3) in relation to a complaint.

(4) The Conduct Division must give the complainant written notice of a referral made under section 21(4) in relation to a complaint.

(5) A notice under subsection (4) must—

(a) state that the Conduct Division has referred the matter to the nominated head of jurisdiction or nominated person; and

(b) include the reasons for making the referral.

(6) Information must not be disclosed to a complainant under subsection (2) or (5)(b) if disclosure of that information would be contrary to the public interest having regard to—



36 Content of notice relating to assessable disclosures

The Conduct Division must not include in a notice under this Division any information that—





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Division 3—Mandatory notifications to the IBAC and the Victorian Inspectorate

37 Mandatory notification of corrupt conduct to the IBAC

(1) The Conduct Division must notify the IBAC of any matter of which it becomes aware in the performance of functions under this Act or any other Act that appears to involve corrupt conduct.

(2) For the purposes of deciding whether to notify the IBAC under this section, the Conduct Division may consult the IBAC.Note

The Conduct Division may continue to investigate a matter that appears to involve corrupt conduct, but must take reasonable steps not to prejudice other investigations. See section 47.

38 Mandatory notification to the Victorian Inspectorate

The Conduct Division must notify the Victorian Inspectorate of any matter of which it becomes aware in the performance of functions under this Act or any other Act that—

(a) appears to involve—

(i) conduct of or in relation to the IBAC or IBAC personnel; or

(ii) conduct (other than corrupt conduct) of an Ombudsman officer within the meaning of the Ombudsman Act 1973, a VAGO officer within the meaning of the Audit Act 1994, or the Chief Examiner or an Examiner within the




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meaning of the Major Crime (Investigative Powers) Act 2004; and

(b) appears to be relevant to the functions of the Victorian Inspectorate.

__________________




PART 4—INVESTIGATION POWERS AND PROCEDURES

Division 1—General powers and procedures of Conduct Division

39 Conduct Division proceedings

Subject to this Act, the Conduct Division may regulate its own proceedings.

40 General requirements

In investigating a complaint or referral, including in a hearing under Division 2—

(a) the Conduct Division is bound by the rules of natural justice; and

(b) the Conduct Division is not bound by the rules of evidence; and

(c) the Conduct Division may inform itself and otherwise deal with the complaint or referral in any manner that the Conduct Division reasonably thinks fit; and

(d) to the extent that the proper consideration of the matters before the Conduct Division permits, the Conduct Division must—

(i) act expeditiously; and

(ii) subject to section 50, act confidentially.

41 Hearings and written submissions

For the purposes of investigating a matter under this Part, the Conduct Division may—

(a) hold a hearing under Division 2; and

(b) receive written submissions from the officer concerned, whether or not it also holds a hearing.




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42 Request for further information

(1) The Conduct Division may request a person who has made a complaint—

(a) to give further information about the complaint or produce any document relevant to the complaint; and

(b) to verify the complaint or any further information or document provided under paragraph (a)—

(i) by statutory declaration; or

(ii) in any other manner specified by the Conduct Division.

(2) The Conduct Division may request a person who has made a referral to give further information about the referral or produce any document relevant to the referral.

(3) The Conduct Division may take a statutory declaration from any person.

(4) A request for verification, further information or to produce a document under subsection (1) or (2) must be given in writing and allow a reasonable time for compliance.

43 Powers as to court or tribunal documents

(1) For the purpose of investigating a complaint or referral, the Conduct Division may request a Victorian court or VCAT to provide the following to the Conduct Division—

(a) a copy of a transcript or recording of a hearing in the court or VCAT that is relevant to the matter;




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(b) a copy of a court or tribunal file or any other document relating to a proceeding in the court or VCAT that is in the possession or control of the court or VCAT that is relevant to the matter.

(2) A Victorian court or VCAT is authorised to and may disclose information to the Conduct Division if the Conduct Division requests that information under subsection (1).

(3) A Victorian court or VCAT must provide reasons for not complying with a request under subsection (1).

44 Requirement to undergo medical examination

(1) For the purpose of investigating a matter under this Part, the Conduct Division may require the officer concerned—

(a) to undergo any medical examination by a registered medical practitioner that the Conduct Division considers necessary; and

(b) to provide a copy of any report of any medical examination undertaken under paragraph (a).

(2) The Conduct Division must not impose a requirement under subsection (1) unless it reasonably believes—

(a) that the officer concerned may be suffering from an impairment, disability, illness or condition that may significantly affect the officer's performance of their functions; and

(b) that the requirement is appropriate in all the circumstances.




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(3) A requirement under subsection (1) must be in writing and must specify—

(a) the nature of the examination; and

(b) the medical practitioner or class of medical practitioner who is to carry out the examination; and

(c) a time limit within which the examination must take place.

(4) A person must not, without reasonable excuse, fail to comply with a requirement of the Conduct Division under subsection (1).

45 Effect of failure to undergo medical examination

In forming an opinion under section 21(3), the Conduct Division may have regard to—

(a) any failure by the officer concerned, without reasonable excuse, to comply with—

(i) a requirement under section 44(1); or

(ii) a request by a registered medical practitioner under section 97 to undergo a medical test; and

(b) any other relevant factors.Note

See Division 3 of Part 5 for the process for medical examinations.

46 Power to adjourn investigation

The Conduct Division may adjourn the conduct of an investigation under this Part—

(a) if the matter is the subject of an investigation being conducted by a law enforcement agency, a regulatory body or an integrity body; or




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(b) if the matter arose out of or is the subject of a current legal proceeding in any Australian court or a tribunal in Australia; or

(c) for any other appropriate reason.

47 Considerations when matter the subject of other investigation or legal proceedings

(1) If, in investigating a matter under this Part, the Conduct Division is or becomes aware that the matter is the subject of an investigation being conducted by a law enforcement agency or an integrity body, the Conduct Division must take reasonable steps to reduce the likelihood that the conduct of the investigation by the Conduct Division may prejudice the investigation by the law enforcement agency or integrity body.

(2) If, in investigating a matter under this Part, the Conduct Division is or becomes aware of a proceeding referred to in section 46(b), the Conduct Division must take reasonable steps to reduce the likelihood that the conduct of the investigation by the Conduct Division may prejudice that proceeding.

48 Extension or referral of matter

(1) If, in investigating a matter under this Part, a matter arises (not being the matter that is the subject of the investigation) that could, in relation to the officer concerned, be a matter to be referred by the head of jurisdiction under section 7 or 8, the Conduct Division may extend the investigation to cover that matter.

(2) If, in investigating a matter under this Part, a matter arises that could, in relation to a judicial officer or non-judicial member of VCAT who is not the subject of the investigation, be a matter to be referred under section 7 or 8, the Conduct Division must refer the matter to the Judicial




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Commission to be dealt with as if it were a referral by—

(a) in the case of a judicial officer who is a head of jurisdiction, the Attorney-General; or

(b) in the case of a judicial officer or non-judicial member of VCAT who is not a head of jurisdiction, the principal head of jurisdiction of the officer.

Division 2—Hearings

49 Notice of hearing

(1) If the Conduct Division decides to hold a hearing for the purpose of investigating a matter under this Part, the Conduct Division must give notice of the hearing to the officer concerned.

(2) A notice under subsection (1) must—

(a) specify the date on which the hearing is to commence; and

(b) specify the place at which the hearing is to be held.

(3) A notice under subsection (1) must be given to the officer concerned—

(a) at least 21 days before the hearing is to commence; or

(b) within any shorter period that is agreed to by the officer concerned.

50 Hearing procedure

(1) In a hearing held by the Conduct Division—

(a) the Conduct Division may give directions regarding the conduct of the hearing; and

(b) the officer concerned may be represented by an Australian lawyer.




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(2) Unless subsection (3) applies, a hearing held by the Conduct Division is closed to members of the public.

(3) The Conduct Division may direct that a hearing or particular parts of a hearing be open to the public if the Conduct Division is satisfied that it would be in the public interest, having regard to—


(b) whether coercive powers are being used against the officer concerned; and

(c) any other relevant matter.

(4) The Conduct Division must not hold a hearing in public if the hearing may disclose particulars likely to lead to the identification of a person who has made an assessable disclosure.

(5) However, the Conduct Division may hold a hearing in public if the information that may be disclosed is information to which section 53(2)(a), (c) or (d) of the Protected Disclosure Act 2012 applies.

51 Offence to be present at closed hearing

A person must not be present at a hearing held by the Conduct Division that is closed to members of the public unless the person is—

(a) a member of the Conduct Division; or

(b) the officer concerned; or

(c) attending in accordance with a witness summons; or

(d) an Australian lawyer representing the officer concerned or a person who is attending in accordance with a witness summons; or




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(e) entitled to be present by reason of a direction given by the Conduct Division under section 52; or

(f) an Australian lawyer, or other person, engaged by the Conduct Division to assist it in the hearing; or

(g) any other person authorised to be present by the Conduct Division or otherwise authorised to be present under this Act or any other law.

Penalty: 120 penalty units or imprisonment for 12 months or both.

52 Conduct Division may give directions

(1) The Conduct Division may give directions as to the persons who—

(a) may be present during a hearing or part of a hearing;

(b) must not be present during a hearing or part of a hearing.

(2) A direction under subsection (1) must not prevent the presence, when evidence is being taken at a hearing, of—

(a) an Australian lawyer representing a person attending in accordance with a witness summons; or

(b) any other person authorised to be present under this Act or any other law.

53 Protection of lawyers and witnesses

(1) An Australian lawyer representing a person at a hearing before the Conduct Division or assisting the Conduct Division at a hearing has the same protection and immunity as a legal practitioner has in representing a party in a proceeding in the Supreme Court.




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(2) A person appearing as a witness at a hearing before the Conduct Division has the same protection and immunity as a witness has in a proceeding in the Supreme Court.

54 Direction prohibiting publication of material

(1) The Conduct Division may give a direction prohibiting the publication of the following except by, or with the leave of, the Conduct Division—

(a) a report of the whole or any part of the proceedings of a hearing or part of a hearing;

(b) a report of any information derived from a hearing or part of a hearing.

(2) The Conduct Division must not give a direction under subsection (1) unless it is satisfied that the direction is in the public interest, having regard to—


(b) whether coercive powers are being used against the officer concerned; and

(c) any other relevant matter.

(3) If a direction has been given under subsection (1), the Conduct Division must cause a notice to be posted—

(a) on a door of the place at which the hearing is being held; or

(b) in another conspicuous place where notices are usually posted at the place at which the hearing is being held.

(4) A person must not engage in conduct that constitutes a contravention of a direction under subsection (1) if that person—




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(a) knows that the direction is in force; or

(b) is reckless as to whether a direction is in force.


55 Duration of direction prohibiting publication of material

(1) Unless a determination is made by the Conduct Division under subsection (2) or (3) or the Judicial Commission under subsection (5), a direction under section 54(1) ceases to have effect if—

(a) a report of the matter is laid before each House of Parliament under section 27(3) or 28(2); or

(b) the nominated head of jurisdiction or nominated person of the officer concerned is given a report under section 21(4); or

(c) the officer concerned is given written notice under section 33(1) of a decision to dismiss the matter.

(2) The Conduct Division, constituted by the same conduct division panel that gave a direction under section 54(1), may determine that that direction is to remain in force until a specified date or indefinitely if the Conduct Division considers that there are exceptional circumstances and it is in the public interest for the direction to remain in force.Example

The Conduct Division may determine there are exceptional circumstances if publication of a report of a hearing or any information derived from a hearing would cause a threat to the safety or welfare of a person.




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(3) The Conduct Division, constituted by the same conduct division panel that gave a direction under section 54(1), may—

(a) vary that direction; or

(b) determine that the direction ceases to have effect, if the direction is no longer reasonably necessary for the purpose for which it was made.

(4) For the purposes of subsection (2) and (3), the conduct division panel is taken to be constituted by the same conduct division panel despite it being reconstituted in accordance with section 24(3).

(5) If the Conduct Division is no longer constituted for the complaint or referral to which the direction relates, the Judicial Commission may—

(a) vary the direction; or

(b) determine that the direction ceases to have effect, if the direction is no longer reasonably necessary for the purpose for which it was made.

56 Notification of certain matters to the Judicial Commission

(1) At the conclusion of a hearing held by the Conduct Division, if any of the following occurred during the course of investigating a matter under this Part, the Conduct Commission must give the Director written notice of that occurrence—

(a) the exercise of any coercive power;

(b) the making of a direction under section 50(3) in relation to the opening of the hearing, or part of the hearing, to the public.




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(2) Written notice under subsection (1) must—

(a) if in relation to the use of any coercive power, explain why the power was exercised; and

(b) if a direction was made under section 50(3), explain why the Conduct Division directed that the hearing or part of the hearing be open to the public.

57 Notification of certain matters to the Victorian Inspectorate

The Director must give the Victorian Inspectorate, by written notice, details of any information the Director has received under section 56.

58 Copies of particular guidelines to be provided to Victorian Inspectorate

The Director must give the Victorian Inspectorate a copy of any guidelines made by the Judicial Commission regarding any of the following matters—

(a) the use of coercive powers;

(b) the determination by the Conduct Division of whether a hearing or part of a hearing should be open to the public under section 50(3).

59 Request for information by the Victorian Inspectorate

(1) The Victorian Inspectorate may request the Judicial Commission to give the Victorian Inspectorate information about the use of coercive powers under this Act.

(2) Information given to the Victorian Inspectorate under this section must be in writing.




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Division 3—Additional powers

60 Power to require production of documents

(1) For the purposes of investigating a matter under this Part, the Conduct Division may, by written notice, require a person to produce to the Conduct Division any document or thing in the possession or control of that person that is material to the investigation.

(2) Written notice under subsection (1)—

(a) must specify a reasonable time within which the person must comply with the requirement; and

(b) must contain the prescribed information (if any); and

(c) must be served on the person to whom it applies.

(3) A person must comply with a written notice under this section unless the person has a reasonable excuse.


Note

The privilege against self-incrimination is abrogated. See section 81.

61 Witness summons

(1) The Conduct Division may issue the following witness summonses to a person—

(a) a summons to attend to give evidence at a hearing at a specified time and place on a specified date;




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(b) a summons to attend at a specified time and place on a specified date to produce documents or other things to the Conduct Division;

(c) a summons to attend a hearing at a specified time and place on a specified date to give evidence and produce documents or other things.

(2) The Conduct Division may, under subsection (1), issue a witness summons directed to a person if satisfied that it is reasonable to do so, having regard to—

(a) the evidentiary value of the information, document or thing sought to be obtained from the person; and

(b) the age of the person and any mental impairment to which the person is known or believed to be subject.

(3) The Conduct Division must not issue a witness summons to a person who is under the age of 18 years unless the Conduct Division considers on reasonable grounds that—

(a) the information, document or thing that the person could provide may be compelling and probative; and

(b) it is not practicable to obtain the information, document or thing by any other means.

(4) If a person is issued with a witness summons referred to in subsection (1)(b), the Conduct Division may excuse that person from attendance if the person produces the required documents or things to the Conduct Division before the time and date for production specified in the witness




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summons in accordance with any directions given by the Conduct Division.

62 Content and form of witness summons

A witness summons must be in the prescribed form and contain the prescribed information.

63 Witness summons directed to person under 16 years

(1) A witness summons directed to a person under the age of 16 years at the date of issue of the witness summons has no effect.

(2) A person who claims to be under the age of 16 years at the date of issue of a witness summons directed to the person must provide proof of age in accordance with the regulations to the Conduct Division.

64 Service of witness summons

(1) Subject to subsection (2), a witness summons must be served at a reasonable time, being not less than 7 days, before the date on which the person is required to attend or otherwise comply with the witness summons.

(2) The Conduct Division may issue a witness summons requiring immediate attendance by a person before the Conduct Division if it considers on reasonable grounds that a delay in the person's attendance is likely to result in—

(a) evidence being lost or destroyed; or

(b) the commission of an offence; or

(c) the escape of a person who is summoned; or

(d) serious prejudice to the conduct of the investigation to which the witness summons relates.




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(3) A witness summons directed to a natural person must be served by serving a copy of the witness summons to the person personally.

(4) A witness summons directed to a body corporate must be served by leaving a copy of the witness summons at the registered office or principal place of business of the body corporate with a person apparently employed at that office or place and who is apparently at least 16 years of age.

(5) Subsection (4) is in addition to, and not in derogation of, sections 109X and 601CX of the Corporations Act.

65 Supreme Court may order service by other means

(1) If it appears that it is not reasonably practicable to serve a witness summons in accordance with section 64, the Conduct Division may apply to the Supreme Court for an order that the witness summons be served by another means.

(2) On an application under subsection (1), if the Supreme Court is satisfied that it is not reasonably practicable to serve a witness summons in accordance with section 64, the Court may—

(a) order that the witness summons be served by any other means the Court considers appropriate; or

(b) make an order for substituted service.

66 Witness already held in custody

(1) If a witness summons is issued to a person who is in a prison or a police gaol, the Conduct Division may give a written direction that the person be delivered into the custody of a police officer for the purpose of bringing the person before the Conduct Division as required by the witness summons.




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(2) A direction under subsection (1)—

(a) must be in the prescribed form; and

(b) must include a statement that if the person who is the subject of the direction is under the age of 16 years at the date the direction is given, the direction is of no effect and the person is not required to attend the Conduct Division.

(3) While a person who is subject to a direction under subsection (1) is absent from a prison or a police gaol, the person is taken to be in the legal custody of the police officer.

(4) The person to whom a direction under subsection (1) applies is to be detained in the legal custody of the police officer until the person is excused by the Conduct Division from attendance.

(5) The police officer who has custody of a person under subsection (3) must return the person to the prison or the police gaol from which the person was removed under the direction under subsection (1) when the person is excused by the Conduct Division from attendance.

67 Specific provisions relating to witnesses

(1) At any time during a hearing, if the Conduct Division becomes aware that a witness is under the age of 16 years, the Conduct Division must immediately release the person from compliance with any witness summons applying to that person.

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Division must provide for a competent interpreter to be present during the hearing of the witness.

(3) The Conduct Division must direct that an independent person, or a parent or guardian, be present during the hearing of a witness if—

(a) the Conduct Division believes the witness has a mental impairment; or

(b) the witness provides the Conduct Division with reasonably satisfactory medical evidence that the witness has a mental impairment; or

(c) the witness is 16 or 17 years of age.

68 Actions to be taken before questioning of a witness or requiring production of a document or other thing

(1) Before a witness summoned to attend a hearing and not excused from attendance under section 61(2) is asked any questions or required to produce a document or thing, the Conduct Division must—

(a) confirm the age of a witness if the Conduct Division considers that a witness may be under the age of 18 years; and

(b) release any witness under the age of 16 years from compliance with any witness summons; and

(c) inform the witness orally and in writing of the person's rights and obligations unless—

(i) the witness is represented at the hearing by an Australian lawyer; or

(ii) the witness informs the Conduct Division that, prior to the hearing an Australian Lawyer has explained the person's rights and obligations; and




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(d) inform an Australian lawyer who is representing a witness or other person at the hearing of any non-disclosure requirements that apply under the Act; and

(e) take any other actions prescribed for the purposes of this subsection.

(2) In the case of an investigation of a protected disclosure complaint, before a person attending as a witness at a hearing (whether voluntarily or in response to a witness summons) is asked any questions or required to produce a document or other thing, the Conduct Division must—

(a) advise the person that additional obligations under the Protected Disclosure Act 2012 relating to confidentiality may apply to the person; and

(b) inform the person of the nature of those obligations; and

(c) inform an Australian lawyer who is representing a witness or other person at the hearing of the confidentiality requirements of the Protected Disclosure Act 2012.

69 Power to examine on oath or affirmation

(1) A member of the Conduct Division may administer an oath or affirmation to a person.

(2) A member of the Conduct Division may, in relation to a person summoned to attend at a hearing—

(a) require the person to either take an oath or make an affirmation; or

(b) administer an oath or affirmation to the person; or




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(c) examine the person in accordance with the witness summons; or

(d) require the person to produce documents or things in accordance with the witness summons.

(3) A member of the Conduct Division may take a statutory declaration from any witness or other person.

70 Offence for summoned witness to fail to attend hearing

(1) A person who is served with a witness summons to attend as a witness to give evidence or to produce documents or other things to the Conduct Division must not, without reasonable excuse, fail to attend in accordance with the witness summons.

Penalty: 240 penalty units or imprisonment for 2 years or both.

(2) A person who is served with a witness summons to attend as a witness to give evidence or to produce documents or other things at a hearing before the Conduct Division must not, without reasonable excuse, fail to attend from day to day unless—

(a) excused by the Conduct Division; or

(b) released from further attendance by the Conduct Division.





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71 Offence for summoned witness to refuse or fail to answer question

A person who is served with a witness summons to attend as a witness to give evidence at a hearing before the Conduct Division must not, without reasonable excuse, refuse or fail to answer a question that the person is required to answer by the Conduct Division.


72 Offence for summoned witness to fail to produce document or thing

A person who is served with a witness summons must not, without reasonable excuse, refuse or fail to produce a document or other thing that the person was required to produce by the witness summons.


73 Offence for summoned witness to fail to take oath or make affirmation

A person who is served with a witness summons to attend as a witness at a hearing before the Conduct Division must not, without reasonable excuse, refuse or fail to take an oath or make an affirmation when required to do so.


74 Allowances for compliance with witness summons

A person required by a witness summons to attend a hearing before the Conduct Division or to produce documents or other things is entitled to receive the prescribed allowance for expenses incurred in complying with the witness summons.




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Division 4—Search warrant powers

75 Search warrant

(1) A member of the Conduct Division, or a police officer acting on behalf of the Conduct Division, may apply to a Judge of the Supreme Court for a search warrant in relation to either or both of the following—

(a) particular premises, if the Conduct Division believes on reasonable grounds that entry to the premises (including any vehicle, vessel or aircraft on or in those premises) is necessary for the purposes of an investigation;

(b) a particular vehicle, vessel or aircraft located in a public place, if the Conduct Division believes on reasonable grounds that entry to the vehicle, vessel or aircraft is necessary for the purposes of an investigation.

(2) If a Judge of the Supreme Court is satisfied by evidence on oath, whether oral or by affidavit, that there are reasonable grounds for the belief under subsection (1)(a) or (b), the Judge may issue a search warrant authorising a police officer (with the assistance of other police officers if necessary)—

(a) to enter and search the premises or vehicle, vessel or aircraft and inspect any document or thing at those premises or on or in that vehicle, vessel or aircraft; and

(b) to make a copy of any document relevant, or that the person reasonably considers may be relevant, to the investigation; and

(c) to take possession of any document or other thing relevant, or that the person reasonably




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considers may be relevant, to the investigation.

(3) A search warrant issued under this section must state—

(a) the purpose for which the search is required; and

(b) any conditions to which the search warrant is subject; and

(c) whether entry is authorised to be made at any time of the day or night or during stated hours of the day or night; and

(d) a day, not later than 28 days after the issue of the search warrant, on which the search warrant ceases to have effect.

(4) Subject to subsection (5) and except as otherwise provided by this Act, the rules to be observed with respect to search warrants under the Magistrates' Court Act 1989 extend and apply to warrants under this section.

(5) Despite section 78 of the Magistrates' Court Act 1989, a search warrant issued under this Act must not authorise the arrest of a person.

76 Search warrant in relation to court or VCAT premises

(1) Subject to subsection (2), if a search warrant is issued in relation to court premises, the Conduct Division must notify and consult the head of jurisdiction for that court about the issuing of the search warrant.

(2) If the officer concerned is the principal head of jurisdiction to which the search warrant relates, the Conduct Division must notify and consult the next most senior judicial officer of the court.




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(3) Subject to subsection (4), if a search warrant is issued in relation to VCAT premises, the Conduct Division must notify and consult the President of VCAT about the issuing of the search warrant.

(4) If the officer concerned is the President of VCAT, the Conduct Division must notify and consult the Acting President or, if there is no Acting President, the Chief Justice.

(5) Despite subsections (1) and (3), the Conduct Division may notify and consult the Chief Justice about the issuing of the search warrant in relation to court premises or VCAT premises.

77 Procedure for executing a search warrant

(1) On executing a search warrant, the person executing it—

(a) must announce that the person is authorised by the search warrant to enter the premises, vehicle, vessel or aircraft, as the case requires, unless, in the case of a vehicle, vessel or aircraft it is in a public place; and

(b) if the person has been unable to obtain unforced entry, must give any person at the premises or in control of the vehicle, vessel or aircraft an opportunity to allow entry to the premises, vehicle, vessel or aircraft, as the case requires.

(2) A person executing a search warrant need not comply with subsection (1) if the person believes on reasonable grounds that immediate entry to the premises, vehicle, vessel or aircraft is required to ensure—

(a) the safety of any person; or

(b) that the effective execution of the search warrant is not frustrated.




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(3) If the occupier is present at premises where a search warrant is being executed, the person executing the warrant must—

(a) identify themselves to the occupier; and

(b) give the occupier a copy of the search warrant.

(4) If the occupier is not present at premises where a search warrant is being executed, the person executing the warrant must—

(a) identify themselves to a person at the premises who is apparently over the age of 18 years; and

(b) give that person a copy of the warrant.

(5) If there is no person apparently over the age of 18 years present at the premises where a search warrant is being executed, the person executing the warrant must leave a copy of the warrant in a conspicuous place at the premises unless the Conduct Division has given a direction under subsection (6).

(6) The Conduct Division may direct that a copy of the search warrant not be left at premises where no person apparently over the age of 18 years is present if the Conduct Division is satisfied that it would be contrary to the public interest for the copy to be left at the premises.

78 Copies or receipts to be given for documents or other things

(1) If under a search warrant a person takes possession of—

(a) a document, disk or tape or other thing that can be readily copied; or

(b) a storage device the information in which can be readily copied—




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the person, on request by the occupier, must give a copy of the document, thing or information to the occupier as soon as practicable after taking possession of it, unless it would be contrary to the public interest to do so.

(2) If a person takes possession of a document or thing under a search warrant and has not provided a copy of the document, thing or information under subsection (1) the person must provide a receipt for that document or thing containing the prescribed particulars as soon as practicable after taking possession of it.

79 Return of documents and other things

(1) The Conduct Division must take all reasonable steps to return a document or other thing seized under a search warrant to the person from whom it was seized if the document or other thing is required as evidence relating to a legal proceeding.

(2) The Conduct Division must immediately take all reasonable steps to return a document or other thing seized under a search warrant to the person from whom it was seized if the Conduct Division is no longer satisfied that its retention is necessary for the purposes of—

(a) an investigation; or

(b) a report on an investigation; or

(c) a legal proceeding arising out of, or connected with, an investigation.

80 Assistance in executing search warrants

(1) A person executing a search warrant may—

(a) seek the assistance of another person (an assistant) over the age of 18 years who possesses specialised skills or technical




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knowledge necessary for exercising a power authorised by the search warrant; or

(b) take onto the premises any equipment, vehicle, animal or material that the person reasonably requires for exercising a power authorised by the search warrant.

(2) The person may authorise the assistant—

(a) to take stated action at the premises, vehicle, vessel or aircraft; and

(b) to exercise stated powers the person is authorised by the search warrant to exercise.

(3) For the purposes of subsection (2), the person—

(a) is only permitted to authorise the assistant to take stated action or exercise stated powers that are consistent with the specialist skills or technical knowledge of the assistant; and

(b) cannot authorise the assistant to arrest a person.

(4) The person must inform the assistant of—

(a) action the assistant is authorised to take; and

(b) the assistant's powers under this section.

Division 5—Privilege

81 Privilege against self-incrimination abrogated

(1) A person is not excused from producing a document or other thing in accordance with a requirement under section 60(1) or a search warrant under section 75, on the ground that the production of the document or other thing might tend to incriminate the person or make the person liable to a penalty.

(2) A person is not excused from answering a question or giving information or from producing




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a document or other thing in accordance with a witness summons, on the ground that the answer to the question, the information, or the production of the document or other thing, might tend to incriminate the person or make the person liable to a penalty.

(3) Any answer, information, document or thing that might tend to incriminate the person or make the person liable to a penalty is not admissible in evidence against the person before any court or person acting judicially, except in proceedings for—

(a) perjury or giving false information; or

(b) an offence against this Act; or

(c) an offence against the Independent Broad-based Anti-corruption Commission Act 2011 or the Victorian Inspectorate Act 2011; or

(d) an offence against section 72 or 73 of the Protected Disclosure Act 2012; or

(e) a disciplinary process or action.

(4) Nothing in subsection (3) prevents the admission in a criminal proceeding or proceeding for the imposition of a penalty of any evidence obtained as a direct or indirect consequence of an answer given at a hearing or a document or other thing produced at a hearing or in answer to a witness summons or a requirement under section 60(1) or a search warrant under section 75, and any such evidence is admissible in the proceeding in accordance with the rules of evidence applicable to the proceeding.

(5) Section 30 of the Evidence (Miscellaneous Provisions) Act 1958 does not apply in respect of any statement made by any person in answer to




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any question in accordance with a witness summons under this Act.

(6) In this section—

disciplinary process or action has the same meaning as in the Independent Broad-based Anti-corruption Commission Act 2011.

82 Journalist privilege does not apply

A person is not entitled to the privilege provided for in Division 1C of Part 3.10 of the Evidence Act 2008 in relation to—

(a) producing a document or other thing in accordance with a requirement under section 60(1); or

(b) answering a question or giving information or producing a document or other thing in accordance with a witness summons; or

(c) the exercise of a power under Division 4.

83 Procedure for determining claims of privilege—notice requiring production or witness summons

(1) This section applies if—

(a) a notice requiring the production of a document or other thing is served on a person under section 60(1) or a witness summons is served on a person under section 61; and

(b) the person claims that—




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(i) the document or other thing to which the notice or witness summons relates is the subject of privilege; or

(ii) information which is an answer to a question or otherwise required to be provided by the person at a hearing before the Conduct Division is the subject of privilege.

(2) A person making a claim to which this section applies must produce the document or other thing in accordance with the notice or attend the hearing in accordance with the witness summons.

(3) The Conduct Division must consider the claim of privilege and either—

(a) withdraw the requirement to produce the document or other thing or to answer the question or provide the information; or

(b) not withdraw the requirement and, in the case of a requirement to produce a document or other thing, require the claimant to immediately seal the document or other thing in an envelope, or otherwise secure it if it cannot be sealed in an envelope, and give it to the Conduct Division.

(4) If the claim relates to a document or other thing, the Conduct Division must not inspect the document or thing in considering the claim.

(5) If the Conduct Division does not withdraw the requirement to produce the document or other thing or to answer the question or provide the information, the Conduct Division must—

(a) apply to the Supreme Court in accordance with section 85 for determination of the claim of privilege; and




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(b) if the Conduct Division requires the claimant to give the document or other thing to the Conduct Division under subsection (3)(b), give the sealed envelope or the document or other thing otherwise secured to the proper court officer of the Supreme Court to be held in safe custody.

(6) Subject to section 86, a person must not open a sealed envelope or interfere with a document or thing secured otherwise than in an envelope before delivery to the proper officer of the Supreme Court.

84 Procedure for determining privilege—search warrants

(1) This section applies if—

(a) a person executing a search warrant (the searcher) wishes to inspect, copy or seize a document or other thing under the search warrant; and

(b) a person who is entitled to claim the privilege (the claimant) claims that the document or other thing is the subject of privilege.

(2) The searcher must consider the claim of privilege and either—

(a) cease exercising the power under the search warrant in relation to the document or other thing over which the claim of privilege is made; or

(b) require the claimant to immediately seal the document or other thing in an envelope, or otherwise secure it if it cannot be sealed in an envelope, and give it to the searcher.

(3) The searcher must not inspect the document in considering the claim of privilege.




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(4) If the searcher requires the claimant to give the document or other thing to the searcher under subsection (2)(b), the searcher must—

(a) notify the Conduct Division as soon as practicable; and

(b) give the sealed envelope or the document or other thing otherwise secured to the proper court officer of the Supreme Court as soon as practicable, and in any event within 3 days after receiving it from the claimant, to be held in safe custody.

(5) Subject to section 86, a person must not open a sealed envelope or interfere with a document or thing secured otherwise than in an envelope before delivery to the proper officer.

85 Application to Supreme Court to determine privilege

(1) Within the relevant period specified in subsection (2), the Conduct Division may apply to the Supreme Court for a determination of a claim of privilege under this Division.

(2) An application under subsection (1) must be made—

(a) in the case of a document or other thing, within 7 days after the sealed envelope or the document or other thing secured otherwise than in an envelope is given to the proper officer under section 83 or 84; or

(b) within 7 days after the person refused to provide information which is an answer to a question or otherwise required to be provided at a hearing on the basis of a claim of privilege.

(3) If no application is made under subsection (1) in relation to a document or other thing within the




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period of 7 days, the proper officer of the Supreme Court must return the document or other thing to the claimant.

(4) If no application is made under subsection (1) in relation to the provision of information in answer to a question or otherwise required to be provided within the period of 7 days, the requirement to answer the question or provide the information is taken to be withdrawn.

(5) The Conduct Division must give notice of the application to the claimant for privilege within a reasonable time before the hearing of the application.

(6) Notice under subsection (5) must be in the prescribed form (if any).

(7) The claimant is entitled to appear and be heard on the hearing of the application.

86 Determination of claim

(1) On an application under section 85, the Supreme Court must determine whether or not the information required in answer to a question asked at the hearing or otherwise required to be provided or the document or other thing in the sealed envelope or secured otherwise than in an envelope is the subject of privilege.

(2) If the application is in respect of a document or other thing, for the purposes of making a determination under subsection (1), the Judge constituting the Supreme Court and any other person authorised by the Court may—

(a) open the sealed envelope or access the document or other thing secured otherwise than in an envelope; and

(b) inspect the document or thing.




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(3) If the Court determines that the document or other thing is the subject of privilege—

(a) the Court must order that the document or thing be returned to the claimant; and

(b) the proper officer must return the document or thing to the claimant.

(4) If the Court determines that the document or other thing is not the subject of privilege—

(a) the Court must order that the document or thing be given to the Conduct Division; and

(b) the proper officer must release the document or thing accordingly.

(5) If the Court determines that the information which is an answer to a question or otherwise required to be provided is the subject of privilege, the Court must order that the claimant is not required to provide the information to the Conduct Division in answer to the question or is not otherwise required to provide that information, as the case requires.

(6) If the Court determines that the information which is an answer to a question or otherwise required to be provided is not the subject of privilege, the Court must order that the claimant provide the information to the Conduct Division in answer to the question or otherwise provide that information in accordance with the requirement of the Conduct Division, as the case requires.

87 Offence to open sealed envelope or have access to document or thing

(1) Subject to section 86(2), a person must not open a sealed envelope or otherwise have access to the




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document or thing contained in the sealed envelope before—

(a) the Court determines the claim of privilege to it; or

(b) the document or thing is returned to the claimant.


(2) Subject to section 86(2), a person must not open or otherwise have access to a document or thing secured otherwise than in an envelope before—

(a) the Court determines the claim of privilege to it; or

(b) the document or thing is returned to the claimant.


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PART 5—FURTHER PROVISIONS FOR INVESTIGATIONS

Division 1—Standing down

88 Standing down of judicial officer or non-judicial member of VCAT by principal head of jurisdiction

(1) The principal head of jurisdiction of a judicial officer or non-judicial member of VCAT may make a determination to stand down the officer or member from office at any time.

(2) A determination by a principal head of jurisdiction under subsection (1) must not be made unless the principal head of jurisdiction believes that—

(a) the continued performance of functions by the judicial officer or non-judicial member of VCAT is likely to impair public confidence in the impartiality, independence, integrity or capacity of the officer or member or the court or tribunal to which the officer or member is appointed or assigned; and

(b) immediate action is required.

(3) A determination under subsection (1) takes effect immediately.

(4) The principal head of jurisdiction who makes a determination under subsection (1) must notify the judicial officer or non-judicial member of VCAT in respect of whom the determination was made of the determination and the details of the determination including that the determination is effective immediately.

(5) A determination under subsection (1) remains in force for 21 days from the date the determination is made, unless a determination is made under section 89 to continue to stand down the judicial officer or non-judicial member of VCAT.




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(6) Within 3 days of making a determination under subsection (1), the principal head of jurisdiction must make a referral to the Judicial Commission under section 7 about the conduct or capacity of the judicial officer or non-judicial member of VCAT on which the determination is based.

(7) A determination to stand down a head of jurisdiction cannot be made under this section.

89 Standing down of officer concerned on recommendation of Conduct Division

(1) At any time after a complaint or a referral is referred to the Conduct Division, the Conduct Division may make a recommendation that the officer concerned—

(a) be stood down from office; or

(b) continue to be stood down from office, if the officer concerned has been stood down under section 88.

(2) On the recommendation of the Conduct Division under subsection (1)—

(a) a principal head of jurisdiction may make a determination to stand down or continue to stand down the officer concerned, if the officer concerned is not a head of jurisdiction; or

(b) the relevant council of judges may make a determination to stand down the officer concerned, if the officer concerned is a head of jurisdiction.

(3) A recommendation of the Conduct Division under subsection (1), or a determination by a person or the relevant council of judges under subsection (2), must not be made unless—




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(a) the Conduct Division, the person or the relevant council of judges believes that

the matter the subject of the complaint or referral could, if substantiated, amount to proved misbehaviour or incapacity of the officer concerned such as to warrant the removal of the officer from office; and

(b) one or more of the following apply—

(i) the officer concerned has been charged with, found guilty of or convicted of an indictable offence or of an offence which, if committed in Victoria, would be an indictable offence;

(ii) the officer concerned has been committed to stand trial for an indictable offence, or is a person against whom a direct presentment has been filed in relation to an indictable offence;

(iii) the officer concerned has been subject to a process in another jurisdiction that is equivalent to a process specified in subparagraph (ii);

(iv) the Conduct Division, the person or the relevant council of judges believes that the continued performance of functions by the officer concerned is likely to impair public confidence in the impartiality, independence, integrity or capacity of the officer concerned or the court or tribunal to which the officer concerned is appointed or assigned.




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(4) A principal head of jurisdiction who makes a determination under subsection (2)(a) must—

(a) give the officer concerned written notice of the decision, including the date the standing down takes effect; and

(b) notify any additional head of jurisdiction of the officer concerned; and

(c) notify the Judicial Commission; and

(d) notify the Conduct Division.

(5) If the relevant council of judges makes a determination under subsection (2)(b), the relevant council of judges must—

(a) give the officer concerned written notice of the decision, including the date the standing down takes effect; and

(b) notify the head of jurisdiction (if any) of the officer concerned; and



90 Effect of standing down

(1) The standing down of a judicial officer or non-judicial member of VCAT under section 88 or 89(2)(a) may relate to—

(a) all of the functions of the officer or member, including in relation to particular classes of proceeding; or

(b) the functions specified in the determination, including in relation to particular classes of proceeding, made by the person to stand down the officer or member.




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(2) A judicial officer or non-judicial member of VCAT who has been stood down must not perform the functions of office to the extent that the member has been stood down in respect of those functions.

(3) If a judicial officer or non-judicial member of VCAT who has been stood down performs a function in respect of which the officer or member has been stood down, the function is taken to be validly performed, as if the officer had not been stood down.

(4) Nothing in this Division is to be taken to affect the payment of salary, allowances and other entitlements to a judicial officer or non-judicial member of VCAT who has been stood down.

91 Effect of standing down head of jurisdiction

(1) The standing down of an officer concerned who is a head of jurisdiction under section 89(2)(b) must relate to all of the functions of the officer, including those functions exercised as a result of holding the office.

(2) Nothing in this Division is to be taken to affect the payment of salary, allowances and other entitlements to a head of jurisdiction who has been stood down under section 89(2)(b).

92 Consultation requirements

(1) A principal head of jurisdiction must consult with any additional head of jurisdiction of an officer concerned before making a determination to stand down the officer under section 89(2)(a).

(2) A failure to comply with a consultation requirement under subsection (1) does not invalidate a determination to stand down the officer concerned.




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93 Alteration to or revocation of standing down

(1) If an officer concerned has been stood down under section 88 or 89(2)(a), the person who stood down the officer may at any time—

(a) alter the functions of the officer concerned in respect of which the officer has been stood down; or

(b) reinstate the officer concerned.

(2) A person who makes a decision under subsection (1) must—

(a) give the officer concerned written notice of the decision, including the date the decision takes effect; and

(b) notify any additional head of jurisdiction of the officer concerned; and



(3) If the officer concerned has been stood down under section 89(2)(b), the relevant council of judges may at any time reinstate the officer concerned.

(4) If the relevant council of judges makes a decision under subsection (3), the relevant council of judges must—

(a) give the officer concerned written notice of the decision, including the date the decision takes effect; and

(b) notify the head of jurisdiction (if any) of the officer concerned; and






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94 Reinstatement of officers concerned

(1) An officer concerned who has been stood down under section 88 or 89 is reinstated if—

(a) the complaint or referral is dismissed; or

(b) the complaint or referral is referred or reported to the nominated head of jurisdiction or nominated person under section 21(4).

(2) On the reinstatement of an officer concerned under subsection (1)—

(a) if the officer concerned was stood down by a principal head of jurisdiction, the principal head of jurisdiction must—

(i) give the officer concerned written notice of the officer's reinstatement, including the date the reinstatement takes effect; and

(ii) notify any additional head of jurisdiction of the officer concerned; and

(iii) notify the Judicial Commission; and

(iv) notify the Conduct Division; or

(b) if the officer concerned was stood down by the relevant council of judges, the Judicial Commission must—

(i) give the officer concerned written notice of the officer's reinstatement, including the date the reinstatement takes effect; and

(ii) notify the Conduct Division.




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Division 2—Relevant council of judges procedure for standing down determination

95 Determination by relevant council of judges

(1) Subject to this Division, for the purposes of making a determination under section 89(2)(b) or section 93(3) the relevant council of judges may regulate its own procedure.

(2) If the relevant council of judges is unable to reach agreement in relation to the procedure of the council for the purposes of making a determination referred to in subsection (1), the procedure for making that determination must be decided by a majority of the members of the council present and voting at the meeting.

96 Meeting of relevant council of judges to make determination

(1) The Chief Justice must determine the time and place for any meeting of the relevant council of judges to make a determination under section 89(2)(b) or 93(3) if the officer concerned is the President of VCAT.

(2) The Chief Judge must determine the time and place for any meeting of the relevant council of judges to make a determination under section 89(2)(b) or 93(3) if the officer concerned is—

(a) the State Coroner; or

(b) the President of the Children's Court.

(3) The most senior member of the relevant court (other than the Chief Justice, the Chief Judge or the Chief Magistrate) must determine the time and place for any meeting of the relevant council of judges to make a determination under section 89(2)(b) or 93(3) if the officer concerned is—

(a) the Chief Justice; or




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(b) the Chief Judge; or

(c) the Chief Magistrate.

Division 3—Process for medical examinations

97 Conduct of medical examination

(1) A registered medical practitioner conducting a medical examination required by the Conduct Division under this Act may require the officer to undergo a medical test, if the registered medical practitioner considers it is necessary.

(2) The officer concerned must not, without reasonable excuse, fail to comply with a requirement of the registered medical practitioner under subsection (1).Note

See section 45 for the consequences of a failure to comply.

98 Report after medical examination

(1) A registered medical practitioner who conducts a medical examination required by the Conduct Division under this Act must give a report to the Conduct Division that sets out—

(a) the results of the medical examination and any medical tests conducted by the medical practitioner relating to any impairment, disability, illness or condition relevant to the performance of the officer's functions; and

(b) the medical practitioner's opinion (if any) as to the effect those results might have on the continuing ability of the officer to perform the functions of his or her office; and

(c) any recommendations of the medical practitioner arising out of the opinion formed by the medical practitioner; and




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(d) the extent to which, if any, the officer complied with any request by the medical practitioner to undergo a medical examination or test or provide the results or findings of a medical examination or medical test.

(2) If a judicial officer or non-judicial member of VCAT undergoes a medical examination to which this section applies, the Conduct Division must—

(a) give the officer concerned the report given by the medical practitioner under subsection (1); and

(b) advise the officer that the officer may, within the time specified by the Conduct Division, provide a medical report under section 99.

(3) The time specified under subsection (2)(b) must be at least 21 days after the giving of the first report.

99 Further medical report may be provided by officer

An officer concerned who is given a report under section 98(2)(a) may submit to the Conduct Division a report from a registered medical practitioner that addresses the matters set out in the report given to the officer.

Division 4—Nominating head of jurisdiction or other person

100 Power to nominate additional head of jurisdiction

(1) In dealing with a complaint or referral in which there is an additional head of jurisdiction for the officer concerned, the Conduct Division dealing with the complaint or referral may nominate that head of jurisdiction for the purpose of the complaint or referral.




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(2) In making a nomination under subsection (1), the Conduct Division making the nomination may take into account whether the complaint or referral specifies conduct in the jurisdiction for which the additional head of jurisdiction is responsible.

101 Power to nominate person for Chief Justice, Chief Judge or Chief Magistrate

(1) In dealing with a complaint or referral in which the officer concerned is the Chief Justice, the Chief Judge or the Chief Magistrate, the Conduct Division dealing with the complaint or referral may nominate a person to act as the nominated person for the officer concerned.

(2) The person who may be nominated under subsection (1) is any one of the following persons—

(a) a person who is, or has been, the head of jurisdiction of a Victorian court;

(b) a person who has been a Justice of the High Court;

(c) a person who is, or has been, the head of jurisdiction of an Australian court (other than a Victorian Court or the High Court).

(3) In making a nomination under subsection (1), the Conduct Division making the nomination—

(a) in the case of a person under subsection (2)(a) or (c), must ensure that the person nominated occupies or occupied an office of the same level or higher than the officer concerned; and

(b) must not nominate a person who does not consent to the nomination.




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Division 5—Statement of reasons

102 Person not entitled to statement of reasons

A person is not entitled to a statement of reasons under section 8 of the Administrative Law Act 1978 for any decision made by the Judicial Commission or the Conduct Division under this Act.

Division 6—Costs

103 Costs

The Conduct Division may award the officer concerned in relation to a complaint or referral reasonable costs if the Conduct Division—

(a) dismisses the complaint or referral; or

(b) refers the complaint or referral to the nominated head of jurisdiction or nominated person; or

(c) considers it is otherwise appropriate to do so.

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PART 6—ACTION TO BE TAKEN ON CONDUCT DIVISION REFERRAL

Division 1—Preliminary

104 Definitions

In this Part—

Conduct Division report means a report by the Conduct Division under section 21(4).

105 Functions of head of jurisdiction not limited

Nothing in this Part limits the functions of a head of jurisdiction under this or any other Act.

Division 2—Referrals and reports to nominated head of jurisdiction or nominated person

106 Actions on receiving Conduct Division report

(1) On a Conduct Division report being made to a nominated head of jurisdiction, the nominated head of jurisdiction may take any one or more of the following actions—

(a) counsel the officer concerned in respect of the matter;

(b) make recommendations to the officer concerned as to future conduct;

(c) exercise any other powers that the nominated head of jurisdiction has in relation to the officer concerned.

Example

A Conduct Division report is made to the Chief Judge. The Chief Judge may exercise the Chief Judge's power under section 17AAA(2) of the County Court Act 1958 to direct the officer concerned to participate in a specific professional development or continuing education program.




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(2) On a Conduct Division report being made to a nominated person, the nominated person may take any one or more of the following actions—

(a) counsel the officer concerned in respect of the matter;

(b) make recommendations to the officer concerned as to future conduct.

107 Matters to be taken into account in making a decision as to action

In making a decision under section 106, the nominated head of jurisdiction or nominated person must have regard to the matters set out in the Conduct Division report.

108 Procedures on making a decision as to action

After a Conduct Division report is made and the matter referred to a nominated head of jurisdiction or nominated person, the nominated head of jurisdiction or nominated person must—

(a) have regard to the Conduct Division report; and

(b) provide a report to the Judicial Commission stating the outcome of the referral of the matter from the Conduct Division and the reasons for that outcome.

109 Where there is more than one nominated head of jurisdiction

(1) If the matter is referred to more than one nominated head of jurisdiction, the matter may be dealt with jointly or separately by the nominated heads of jurisdiction.

(2) If the nominated heads of jurisdiction make a decision under subsection (1) to act separately, each nominated head of jurisdiction must give a




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report to the Judicial Commission under section 108.

110 Notice of action to be given to complainant or referrer

(1) On receiving a report under section 108, the Judicial Commission must give a copy of the report—

(a) to the Attorney-General; and

(b) in the case of—

(i) a complaint, to the complainant; or

(ii) a referral by a person who is not a nominated head of jurisdiction, to that person.

(2) The Judicial Commission must not disclose any information in a report under subsection (1) if disclosure of that information is contrary to the public interest having regard to—



Division 3—Report as to removal of non-judicial member of VCAT

111 Power to recommend removal of non-judicial member of VCAT on receiving report

After receiving a report under section 21(3)(b) that facts exist that could amount to proved misbehaviour or incapacity such as to warrant the removal of the officer from office, the Attorney-General, after consulting the President of VCAT, may recommend to the Governor in Council that the officer concerned be removed from office.




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112 Power of Governor in Council to remove non-judicial member of VCAT

The Governor in Council may remove a non-judicial member of VCAT from office on the recommendation of the Attorney-General under section 111 but not otherwise.

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PART 7—ADMINISTRATION

Division 1—The Judicial Commission and the Board

113 Delegation by Judicial Commission

(1) Subject to subsection (2), the Judicial Commission, by instrument, may delegate any of its functions to—

(a) the Director; or

(b) a member of the Board; or

(c) the members of a committee that consists of 2 or more members of the Board.

(2) The following functions cannot be delegated—

(a) the power of delegation under subsection (1);

(b) the power to recommend the appointment of a Director under section 119(1);

(c) the power to recommend the removal of a Director under section 122;

(d) the power to recommend the appointment of an acting Director under section 124.

Note

The Judicial Commission and the Board of the Judicial Commission are established under Part IIIAA of the Constitution Act 1975.

114 Acting judicial members of the Board

(1) A person nominated by a judicial member of the Board (the nominee of that member) may act as a judicial member of the Board in the absence of the judicial member.

(2) The nominee of a judicial member of the Board must be—

(a) in the case of the nominee of the President of VCAT—a Vice President or Deputy




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President of VCAT; or

(b) in the case of the nominee of any other judicial member—a judicial officer of the jurisdiction of that member.

(3) While a nominee is acting in the absence of a judicial member of the Board—

(a) the nominee may exercise any of the functions of the judicial member; and

(b) a reference in this Division to the judicial member of the Board is to be read as a reference to the nominee.

115 Acting appointed members of the Board

(1) The Governor in Council may appoint a person to act as an appointed member of the Board.

(2) An acting appointed member of the Board may act in the office of an appointed member—

(a) during a vacancy in that office; or

(b) during a period or all periods when the person holding that office—

(i) is absent from duty; or

(ii) for any other reason, is unable to perform the duties of that office.

(3) A person appointed as an acting appointed member of the Board must be a person who would be eligible for appointment as an appointed member of the Board in whose place the person is appointed to act.

(4) An acting appointed member of the Board holds office on the terms and conditions specified in the instrument of appointment.

(5) An acting appointed member of the Board is entitled to the remuneration and allowances determined by the Governor in Council.




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(6) An acting appointed member of the Board may resign by delivering a signed letter of resignation to the Governor.

(7) The Governor in Council may at any time remove an acting appointed member of the Board from office.

116 Meetings of the Board

(1) The Chief Justice is the chairperson of the Board.

(2) A meeting of the Board must be chaired by—

(a) the chairperson; or

(b) if the chairperson is unable to participate at the meeting and the chairperson's nominee is present at the meeting, the nominee; or

(c) if both the chairperson and a nominee of the chairperson are unable to participate at the meeting, a member of the Board elected by the members present at the meeting.

(3) The quorum for a meeting of the Board is 7 members of the Board, of whom—

(a) at least 4 must be judicial members of the Board; and

(b) at least 2 must be appointed members.

(4) If the Chief Justice is the subject of a complaint or referral that is to be considered at a meeting of the Board, the next most senior Judge of the Supreme Court who is available to attend may attend and vote the meeting.

(5) A person referred to in subsection (4) may be, but need not be, a nominee of the Chief Justice.

(6) A member of the Board may participate in a meeting by telephone, video conference or any similar means of communication.




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117 Decisions of the Board

(1) A question arising at a meeting of the Board is determined by a majority of the votes of the members present and voting on the question.

(2) The chairperson of the Board has a deliberative vote and, in the event of an equal number of votes on any question, a second or casting vote.

(3) A judicial member of the Board must not participate in the deliberations by the Board about a complaint or referral if the judicial member is the subject of the complaint or referral.

(4) A nominee of a judicial member of the Board must not participate in the deliberations by the Board about a complaint or referral if—

(a) the nominee is the subject of the complaint or referral; or

(b) the judicial member who nominated the nominee is the subject of the complaint or referral.

118 Proceedings of the Board

Subject to this Act, the Board may regulate its own proceedings.

Division 2—Director and staff of Judicial Commission

119 Appointment of Director

(1) On the recommendation of the Board, the Chief Executive Officer of Court Services Victoria must appoint a person to be the Director of the Judicial Commission.

(2) The following persons are not eligible for appointment as the Director—

(a) a person who is, or has been, a judge, associate judge, master or magistrate of an Australian court;




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(b) a person who is, or has been, the holder of an office equivalent to the office of judicial registrar in an Australian court;

(c) a person who is, or has been, a judicial officer, non-judicial member of VCAT or member of a prescribed tribunal.

(3) Subject to subsection (4), the appointment is on the terms and conditions (including remuneration and allowances) fixed by the Chief Executive Officer of Court Services Victoria.

(4) The Director—

(a) holds office for the period, not exceeding 5 years, specified in the Director's instrument of appointment; and

(b) is eligible for reappointment.

120 Functions of Director

(1) The Director is responsible for the administration of the Judicial Commission.

(2) The functions of the Director include providing administrative assistance to the Conduct Division.

121 Vacancy in office of Director

The Director ceases to hold office if the Director—

(a) becomes insolvent under administration; or

(b) is convicted, or found guilty, of an indictable offence or an offence that, if committed in Victoria, would be an indictable offence; or

(c) resigns in writing delivered to the Board; or

(d) is removed from office under section 122.




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122 Removal of Director from office

(1) The Board may recommend to the Chief Executive Officer of Court Services Victoria that the Director be removed from office on any of the following grounds—

(a) misconduct;

(b) neglect of duty;

(c) inability to perform the duties of the office;

(d) any other ground on which the Board is satisfied that the Director is unfit to hold office.

(2) If the Board makes a recommendation under subsection (1), the Chief Executive Office of Court Service Victoria must remove the Director from office.

123 Delegation by Director

The Director, by instrument, may delegate to a member of the staff of the Judicial Commission any of the Director's functions and powers other than—

(a) the power to dismiss a complaint or referral; or

(b) this power of delegation.

124 Acting Director

(1) On the recommendation of the Board, the Chief Executive Officer of Court Services Victoria may appoint a person to act in the office of the Director—

(a) during a vacancy in that office; or




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(b) during a period or all periods when the person holding that office—

(i) is absent from duty; or

(ii) for any other reason, is unable to perform the functions of that office.

(2) An appointment under subsection (1) is—

(a) on the terms and conditions fixed by the Chief Executive Officer; and

(b) for the period, not exceeding 12 months, specified in the instrument of appointment.

125 Employees of Judicial Commission

(1) Any employees that are necessary to enable the Judicial Commission and the Director to perform their functions may be employed under Part 3 of the Public Administration Act 2004.

(2) Section 8 of the Public Administration Act 2004 applies in relation to the employment of employees referred to in subsection (1) as if the reference to public sector body Heads included a reference to the Chief Executive Officer of Court Services Victoria.

126 Engagement of consultants

The Judicial Commission may engage persons with suitable qualifications and experience as consultants to the Judicial Commission either in an honorary capacity or for remuneration.

Division 3—Conduct Division

127 Assistance to Conduct Division by Judicial Commission officers

The Director must make arrangements for staff of the Judicial Commission to assist the Conduct Division in the conduct of an investigation under this Act.




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128 Delegation by Conduct Division

The Conduct Division, by instrument, may delegate the power to dismiss a complaint or referral to—

(a) the Director; or

(b) the members of a committee that consists of 2 members of the Conduct Division as constituted for the complaint or referral concerned; or

(c) a member of the Conduct Division as constituted for the complaint or referral concerned.

Division 4—Guidelines and reports

129 Guidelines

(1) The Judicial Commission may make guidelines about—

(a) standards of ethical and professional conduct expected of judicial officers and non-judicial members of VCAT; and

(b) the practices that should be adopted by judicial officers and members of VCAT in relation to the performance of their functions; andExample

Examples of practices that should be adopted may include matters such as recommendations to judicial officers and members of VCAT as to how to deal with—

self-represented litigants; or

victims and their families; or

counsel appearing before the officer.




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(c) the performance of functions conferred by or under this or any other Act by the Judicial Commission or the Conduct Division in respect of complaints or referrals; and

(d) the making of complaints or referrals; and

(e) the assistance to be provided by the Director and staff of the Judicial Commission to the Conduct Division; and

(f) the use of coercive powers under this Act; and

(g) the matters to be considered by the Conduct Division for the purposes of determining whether a hearing or part of a hearing should be open to the public under section 50(3); and

(h) any other matters that the Judicial Commission considers appropriate.

(2) The Judicial Commission must ensure that guidelines made under subsection (1) are published on an Internet site maintained by the Judicial Commission.

(3) The Judicial Commission must ensure that guidelines are not inconsistent with this Act or any regulations made under this Act.

(4) If the guidelines are inconsistent with the Act or regulations, the Act or regulations prevail to the extent of the inconsistency.

130 Annual report of the Judicial Commission

(1) The Judicial Commission must include the following information in its annual report of operations under Part 7 of the Financial Management Act 1994 in respect of each financial year—




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(a) the number of complaints and referrals received by the Judicial Commission;

(b) the time taken to deal with complaints and referrals;

(c) the number of complaints and referrals dismissed by the Judicial Commission;

(d) the number of complaints and referrals referred to the Conduct Division;

(e) information relating to the exercise of the powers under Part 4 by the Conduct Division, including the following—

(i) the number of search warrants issued by the Supreme Court on the application of the Conduct Division under section 75;

(ii) the number of hearings held by the Conduct Division and whether each hearing was held in public or private;

(iii) the number of notices issued under section 60 requiring the production of documents or a thing;

(iv) the number of witness summonses issued under section 61;

(v) the number of claims for privilege determined by the Supreme Court under section 86;

(f) information as to the outcome of investigations by the Conduct Division including the following—

(i) the number of matters dismissed and the grounds on which those matters were dismissed;

(ii) the number of reports made under section 21(3);




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(iii) the number of referrals made under section 21(4);

(g) the number of notifications made to the IBAC under section 37;

(h) the number of notifications made to the Victorian Inspectorate under section 38;

(i) an analysis of the nature and scope of complaints and referrals received or investigated;

(j) the number of declarations made by the Judicial Commission under section 135.

Note

See also section 69 of the Protected Disclosure Act 2012 for other matters that must be included in the Judicial Commission's annual report.

(2) The information referred to in subsection (1) must not identify an officer concerned unless—

(a) the Conduct Division has made a report under section 21(3); or

(b) identifying the officer concerned is in the public interest, having regard to the disclosure considerations.

(3) The Judicial Commission must not include in its annual report any information that—






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Division 5—Miscellaneous

131 Immunity of members of the Board

(1) A judicial member or appointed member of the Board is not personally liable for anything necessarily or reasonably done or omitted to be done in good faith—

(a) in the exercise of a power or the performance of a function under this Act or the regulations; or

(b) in the reasonable belief that the act or omission was in the exercise of a power or the performance of a function under this Act or the regulations.

(2) Any liability resulting from an act or omission that would, but for subsection (1), attach to the judicial member or appointed member of the Board attaches instead to the Judicial Commission.

(3) When exercising a power or performing a function under this Act or the regulations in a member's capacity as a judicial member of the Board, a judicial member of the Board has the same immunity and protection that would apply to the member in the performance or exercise of an administrative function or power conferred on the member in their capacity as a Judge, Magistrate, Coroner or judicial member of VCAT (as the case may be).Note

See section 24D of the Supreme Court Act 1986, section 9A of the County Court Act 1958, section 14 of the Magistrates' Court Act 1989, section 512 of the Children, Youth and Families Act 2005, section 101(1) of the Coroners Act 2008 and section 143(1) of the Victorian Civil and Administrative Tribunal Act 1998.




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132 Immunity of member of Conduct Division

A member of the Conduct Division has, in the performance of the member's duties as a member of the Conduct Division, the same protection and immunity as a Judge of the Supreme Court has in the performance of the Judge's duties as a Judge.

133 Use and disclosure of information

(1) A relevant person who obtains or receives information in the course of or as a result of the performance of the functions of the Judicial Commission or the Conduct Division in relation to complaints and referrals must not use or disclose that information except—

(a) for the purposes of the performance of the functions of the Judicial Commission or the Conduct Division; or

(b) as required, authorised or permitted by this Act or the regulations; or

(c) for disclosing it to the IBAC; or

(d) for disclosing it to the Victorian Inspectorate; or

(e) as otherwise required, authorised or permitted by law.

Penalty:120 penalty units.

(2) Subsection (1) does not apply to the disclosure of information to Victoria Police or any other law enforcement agency, a regulatory body or an integrity body to the extent reasonably required for one or more of the following—

(a) the prevention, detection, investigation, prosecution or punishment of criminal offences or breaches of law;

(b) the enforcement of laws relating to the confiscation of the proceeds of crime;




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(c) the protection of the public revenue;

(d) the lessening or prevention of—

(i) a serious and imminent threat to an individual's life, health, safety or welfare; or

(ii) a serious threat to public health, public safety or public welfare; or

(e) the prevention, detection, investigation or remedying of improper conduct;

(f) the preparation for, or conduct of, proceedings before any court or tribunal, or implementation of the orders of a court or tribunal.

(3) Subject to subsection (4), a relevant person must not use or disclose information in the circumstances otherwise permitted by subsection (1) or (2) that is likely to lead the identification of a person who has made an assessable disclosure.

(4) A relevant person may use or disclose information under subsection (1) or (2) to which section 53(2)(a), (c) or (d) of the Protected Disclosure Act 2012 applies.

(5) In this section—

relevant person means—

(a) a Judicial Commission officer or former Judicial Commission officer; or

(b) a member or former member of the Conduct Division; or

(c) a prescribed person.

134 Release of information to public

(1) If the Judicial Commission is of the opinion that it is in the public interest, the Judicial Commission may publish information about—




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(a) the performance of any functions of the Judicial Commission or the Conduct Division under this Act including in relation to a particular complaint or referral; and

(b) any other action under this Act by a nominated head of jurisdiction, nominated person or officer concerned.

(2) In determining whether to make a public disclosure under subsection (1), the Judicial Commission must have regard to the disclosure considerations.

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PART 8—GENERAL PROVISIONS

135 Vexatious complainants

(1) The Judicial Commission may declare a person to be a vexatious complainant if the person persistently and without reasonable grounds makes complaints, whether about one person who is a judicial officer or non-judicial member of VCAT or more than one such person.

(2) The Judicial Commission must notify the person in respect of whom a declaration under subsection (1) is to be made and give the person a reasonable opportunity to make a submission to the Judicial Commission about the proposed declaration within a specified time.

(3) In making a declaration under subsection (1), the Judicial Commission must have regard to any submission made within the time specified in the notice under subsection (2).

(4) The Judicial Commission must notify the person in respect of whom a declaration under subsection (1) is made as soon as possible after making the declaration.

(5) The Judicial Commission may—

(a) suspend a declaration made under subsection (1) for a period of time; or

(b) revoke a declaration made under subsection (1).

(6) The Judicial Commission must notify the person in respect of whom a declaration made under subsection (1) is suspended or revoked as soon as possible after the suspension or revocation.

(7) A declaration made under subsection (1) remains in force until the Judicial Commission revokes the declaration.




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(8) If the Judicial Commission suspends a declaration made under subsection (1) for a period of time, the declaration ceases to be in force for the period during which it is suspended.

136 Offence to make statement which is false or misleading

A person must not wilfully make a statement that the person knows to be false or misleading in a material particular or mislead or attempt to mislead the Judicial Commission or the Conduct Division in the exercise of the powers of the Judicial Commission or the Conduct Division under this Act or the regulations.

Penalty:120 penalty units or imprisonment for 12 months or both.

137 Disclosure of confidential information

The answering of a question, giving of information or production of a document or other thing to the Judicial Commission or the Conduct Division in any of the following circumstances does not constitute a breach of a provision of an Act or any regulations or rules made under an Act prohibiting the disclosure of information of that kind—

(a) making a complaint under section 5 or 6;

(b) making a referral under section 7 or 8;

(c) in accordance with a requirement by the Conduct Division under section 41, 42, 43 or 60;

(d) in accordance with a search warrant under section 75 or a witness summons.




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138 Requests for information authorised by law

For the avoidance of doubt, the answering of a question, giving of information or production of a document or other thing in any of the circumstances referred to in section 137 is authorised by law for the purpose of—

(a) clause 2.1(f) of Schedule 1 to the Information Privacy Act 2000 (the information privacy principles); and

(b) clause 2.2(c) of Schedule 1 to the Health Records Act 2001 (the health privacy principles).

139 Retention of information

The Judicial Commission may—

(a) retain any information obtained in the course of performing functions under this Act in relation to a complaint or referral; and

(b) use any such information in performing functions under this Act in relation to any other complaint or referral.

140 Exemption from Freedom of Information Act 1982

(1) The Freedom of Information Act 1982 does not apply to a document that is in the possession of any person or body to the extent to which the document discloses information that relates to—

(a) a complaint or referral; or

(b) an investigation, recommendation or referral under Part 2, 3 or 4.

(2) In this section, document has the same meaning as in the Freedom of Information Act 1982.




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141 Exemption from Health Records Act 2001

Part 5 and Health Privacy Principle 6 of the Health Records Act 2001 do not apply to a document or any information held by the Judicial Commission or the Conduct Division under this Act that relates to—


(b) an investigation, recommendation or referral under Part 2, 3 or 4.

142 Exemption from Information Privacy Act 2000

Information Privacy Principle 6 of the Information Privacy Act 2000 does not apply to a document or any information held by the Judicial Commission or the Conduct Division under this Act that relates to—


(b) an investigation, referral or report under Part 2, 3 or 4.

143 Regulations

(1) The Governor in Council may make regulations for or with respect to the following—

(a) prescribing the remuneration and allowances of persons appointed as members of the Conduct Division;

(b) prescribing a tribunal of another State or Territory, or a tribunal created by the Parliament of the Commonwealth, for the purposes of this Act;

(c) prescribing the form and content of a witness summons;

(d) prescribing by scale or otherwise the allowances for compliance with a witness summons;




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(e) generally prescribing any other matter or thing required or permitted by this Act to be prescribed or necessary to be prescribed to give effect to this Act.

(2) The regulations may—

(a) be of general or limited application; and

(b) differ according to differences in time, place or circumstances; and

(c) confer a discretionary authority or impose a duty on a specified person or body or a specified class of persons or bodies; and

(d) apply, adopt or incorporate any matter contained in any document, code, standard, rule, specification or method formulated, issued, prescribed or published by any person, whether—

(i) wholly or partially or as amended by the regulations; or

(ii) as formulated, amended, issued, prescribed or published at the time the regulations are made or at any time before then; or

(iii) as formulated, amended, issued, prescribed or published from time to time.

144 Savings and transitional provisions

Schedule 2 has effect.

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PART 9—AMENDMENT OF OTHER ACTS

Division 1—Amendment of Constitution Act 1975

145 Constitution Act 1975—Repeal of section 81A(2)

Section 81A(2) of the Constitution Act 1975 is repealed.

146 Constitution Act 1975—Amendment of section 83

After section 83(22) of the Constitution Act 1975 insert—

"(23) For the purposes of this section, a reference to the resignation or retirement of a Judge of the Court includes a reference to the removal of a Judge from office by the Governor in Council under section 87AAB on the ground of proved incapacity if both Houses of the Parliament pray for the removal solely on the ground of proved incapacity.

(24) A removal referred to in subsection (23) is taken to be a resignation or retirement due to the Judge of the Court having become afflicted with some permanent incapacity disabling the Judge from the due execution of the Judge's office.".

See:Act No.8750.Reprint No. 20as at13 October 2011and amendingAct Nos5/2013, 28/2013, 37/2013, 63/2013, 67/2013 and 37/2014.LawToday:www.legislation.vic.gov.au




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147 New Division heading inserted

After the heading to Part IIIAA of the Constitution Act 1975 insert the following heading—

"Division 1—Preliminary".

148 Constitution Act 1975—Amendment of section 87AAA

(1) In section 87AAA of the Constitution Act 1975 insert the following definitions—

"appointed member, of the Board, means a member of the Board appointed under section 87AAO;

Australian court has the same meaning as in the Judicial Commission Act 2014;

Board means the Board of the Judicial Commission established under section 87AAM;

complaint has the same meaning as in the Judicial Commission Act 2014;

Conduct Division means the Conduct Division of the Judicial Commission of Victoria established by section 87AAR;

conduct division panel means a panel appointed by the Judicial Commission under Division 5;

Judicial Commission means the Judicial Commission of Victoria established by section 87AAK;

judicial member, of the Board, means a member of the Board referred to in section 87AAN;




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judicial officer means the following—

(a) a Judge of the Court;

(b) a reserve Judge;

(c) an Associate Judge;

(d) a reserve Associate Judge;

(e) a Judge or reserve Judge of the Supreme Court who is appointed or assigned to VCAT;

(f) a judge of the County Court;

(g) a reserve judge of the County Court within the meaning of the County Court Act 1958;

(h) an associate judge of the County Court appointed under section 17A of the County Court Act 1958;

(i) a reserve associate judge of the County Court within the meaning of the County Court Act 1958;

(j) a person referred to in paragraph (f) or (g) who is appointed or assigned to VCAT;

(k) a magistrate;

(l) a reserve magistrate;

(m) a magistrate or reserve magistrate who is appointed or assigned to the Children's Court, the Coroners Court or VCAT;

(n) a reserve coroner within the meaning of the Coroners Act 2008;

(o) a person appointed under section 94 of the Coroners Act 2008;

(p) a judicial registrar;




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judicial registrar means a judicial registrar of the Supreme Court, the County Court, the Magistrates' Court, the Children's Court or the Coroners Court;

member, in relation to VCAT, has the same meaning as in section 3 of the Victorian Civil and Administrative Tribunal Act 1998;

non-judicial member of VCAT means a member of VCAT who is not a judicial officer;

protected disclosure complaint means a disclosure that the IBAC has determined under section 26 of the Protected Disclosure Act 2012 to be a protected disclosure complaint;

referral has the same meaning as in the Judicial Commission Act 2014;

reserve magistrate means a person appointed under section 9A of the Magistrates' Court Act 1989;".

(2) In section 87AAA of the Constitution Act 1975 the definitions of investigating committee, panel and qualifying office are repealed.

(3) At the end of section 87AAA of the Constitution Act 1975 insert—

"(2) In this Part, other than section 87AAJ, a reference to the holder of a judicial office includes a reference to the following—

(a) a reserve Judge;

(b) a reserve Associate Judge;

(c) a reserve judge of the County Court within the meaning of the County Court Act 1958;




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(d) a reserve associate judge of the County Court;

(e) a reserve magistrate;

(f) a reserve coroner within the meaning of the Coroners Act 2008;

(g) a person appointed under section 94 of the Coroners Act 2008;

(h) a judicial registrar.".

149 New Division heading inserted

After section 87AAA of the Constitution Act 1975 insert the following heading—

"Division 2—Judicial offices".

150 Constitution Act 1975—Amendment of section 87AAB(2)

In section 87AAB(2) of the Constitution Act 1975, for "an investigating committee appointed under section 87AAD" substitute "the Conduct Division".

151 Constitution Act 1975—Repeal of sections 87AAC to 87AAH

Sections 87AAC, 87AAD, 87AAE, 87AAF, 87AAG and 87AAH of the Constitution Act 1975 are repealed.

152 New Divisions 3 to 6 of Part IIIAA inserted

After section 87AAJ of the Constitution Act 1975 insert—

"Division 3—Judicial Commission of Victoria

87AAK Establishment of Judicial Commission

(1) The Judicial Commission of Victoria is established.




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(2) The Judicial Commission—

(a) is a body corporate with perpetual succession; and

(b) must have an official seal; and

(c) may sue and be sued in its corporate name; and

(d) may acquire, hold and dispose of personal property; and

(e) subject to this Act, may do and suffer all acts and things that a body corporate may by law do and suffer.

(3) The official seal of the Judicial Commission must be kept as directed by the Judicial Commission and must not be used except as authorised by the Judicial Commission.

Note

The Judicial Commission is a special body under section 6(1) of the Public Administration Act 2004.

87AAL Functions of Judicial Commission

(1) The Judicial Commission has the following functions—

(a) professional standards functions, being to make guidelines regarding the standards of ethical and professional conduct and general standards of appropriate conduct expected of judicial officers and non-judicial members of VCAT;

(b) complaints handling functions, being the receipt and referral of complaints and referrals regarding judicial officers and non-judicial members of VCAT, including disclosures made under the Protected Disclosure Act 2012;




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(c) to provide support to the Conduct Division to assist the Conduct Division in the performance of its functions;

(d) to disseminate information and educate the public about the functions of the Judicial Commission and the Conduct Division;

(e) any other function conferred on the Judicial Commission by or under this or any other Act.

(2) The Judicial Commission has all the powers necessary to perform its functions, including any power conferred on it by or under this or any other Act.

Division 4—Board of Judicial Commission

87AAM Board of Judicial Commission

(1) The Judicial Commission is to have a governing body called a Board.

(2) The Board is responsible for—

(a) performing the functions of the Judicial Commission; and

(b) exercising the powers of the Judicial Commission.

(3) The Board consists of—

(a) the judicial members of the Board; and

(b) 4 members appointed under section 87AAO.

87AAN Judicial members of the Board

(1) The judicial members of the Board are—

(a) the Chief Justice; and

(b) the Chief Judge; and




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(c) the Chief Magistrate; and

(d) the President of the Children's Court; and

(e) the State Coroner; and

(f) the President of VCAT.

(2) A judicial member of the Board is entitled to the allowances determined by the Governor in Council but is not entitled to remuneration.

87AAO Appointed members of the Board

(1) The Governor in Council may appoint a person to be a member of the Board on the recommendation of the Attorney-General.

(2) The Attorney-General may recommend a person of high standing in the community, other than a person—

(a) who is, or has been a judge, associate judge, master or magistrate of an Australian court; or

(b) who is, or has been a judicial officer, non-judicial member of VCAT or member of a prescribed tribunal; or

(c) who is, or has been the holder of an office equivalent to the office of judicial registrar in an Australian court; or

(d) who is, or has been an Australian legal practitioner; or

(e) who is a member of the Parliament of Victoria or of the Parliament of the Commonwealth or of another State or a member of the Legislative Assembly of the Australian Capital Territory or the Northern Territory; or




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(f) who is employed under Part 3 of the Public Administration Act 2004.

(3) An appointed member of the Board holds office—

(a) on the terms and conditions specified in the instrument of appointment; and

(b) for the period, not exceeding 5 years, specified in the instrument of appointment.

(4) An appointed member of the Board is eligible for reappointment, but must not hold office as a member of the Board for a period, or an aggregate of periods, exceeding 10 years.

(5) An appointed member of the Board is entitled to the remuneration and allowances determined by the Governor in Council.

87AAP Suspension of appointed member

(1) The Attorney-General may recommend to the Governor in Council that an appointed member of the Board be suspended if the Attorney-General is of the opinion that the member—

(a) is mentally or physically incapable of satisfactorily performing functions as a member of the Board; or

(b) is guilty of improper conduct in performing functions as a member of the Board; or

(c) has failed to attend 3 consecutive meetings of the Board without reasonable excuse; or




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(d) has otherwise engaged in improper conduct of a nature or seriousness that is incompatible with the person continuing to hold office as a member of the Board.

(2) The Governor in Council may suspend an appointed member of the Board from office on the recommendation of the Attorney-General under subsection (1).

(3) If an appointed member of the Board is suspended from office, the Attorney-General must cause a full statement of the grounds of the suspension to be laid before each House of Parliament within 7 sitting days of that House after the suspension.

(4) The Governor in Council must remove the suspension unless each House of Parliament, within 20 sitting days after the statement is laid before it, passes a resolution calling for the member's removal from office.

87AAQ Cessation of appointment of appointed member

(1) An appointed member of the Board ceases to hold office if the appointed member—

(a) is removed from office by the Governor in Council following a resolution of both Houses of Parliament calling for the appointed member's removal from office; or

(b) is found guilty of an indictable offence or an offence that, if committed in Victoria, would be an indictable offence; or

(c) becomes an insolvent under administration; or




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(d) nominates for election for a House of Parliament of Victoria or of the Parliament of the Commonwealth or of another State or of a Territory; or

(e) delivers a signed letter of resignation to the Governor; or

(f) becomes—

(i) a judge, associate judge, master or magistrate of an Australian court; or

(ii) a judicial officer, non-judicial member of VCAT or member of a prescribed tribunal; or

(iii) the holder of an office equivalent to the office of judicial registrar in an Australian court; or

(iv) an Australian legal practitioner.

(2) An appointed member of the Board must not be suspended or removed from office except in accordance with this Division.

Division 5—Conduct Division of the Judicial Commission

87AAR Establishment of Conduct Division

(1) The Conduct Division of the Judicial Commission is established.

(2) For the purposes of performing its functions, the Conduct Division is to be constituted by one or more conduct division panels in accordance with this Division.




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87AAS Functions of Conduct Division

(1) The Conduct Division has the following functions—

(a) investigative functions, being to investigate complaints and referrals referred to the Conduct Division by the Judicial Commission regarding judicial officers and non-judicial members of VCAT, including disclosures made under the Protected Disclosure Act 2012;

(b) to make recommendations in relation to the standing down of an officer;

(c) any other functions conferred on it by or under this or any other Act.

(2) The Conduct Division has all the powers necessary to perform its functions, including any power conferred on it by or under this or any other Act.

87AAT Conduct division panels

(1) The Judicial Commission may appoint a conduct division panel—

(a) on an on-going basis; or

(b) for the duration of the investigation of a complaint or referral.

(2) The Judicial Commission may appoint more than one conduct division panel at any time for the purposes of the investigation of different complaints or referrals.

(3) A conduct division panel may investigate 2 or more complaints or referrals if the Judicial Commission considers it appropriate in the circumstances.




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87AAU Membership of conduct division panel

(1) A conduct division panel consists of 3 members appointed by the Judicial Commission of whom—

(a) one member must be a person appointed to the pool of persons under section 87AAW; and

(b) one member must be a person appointed to the pool of persons under section 87AAV(2)(b); and

(c) one member must be a person who is—

(i) a judicial officer; or

(ii) a judge, associate judge, master or magistrate (by whatever name called) of a court of another State or a Territory; or

(iii) a judge, associate judge, master or magistrate (by whatever name called) of a court created by the Parliament of the Commonwealth; or

(iv) a former Justice of the High Court; or

(v) the holder of an office equivalent to the office of judicial registrar in an Australian court (other than a Victorian court); or

(vi) a non-judicial member of VCAT or a member of a prescribed Tribunal; or

(vii) appointed to the pool of persons under section 87AAV(2)(b).




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(2) A person must not be appointed under subsection (1) if the person—

(a) is a member of the Board; or

(b) is a person referred to in subsection (1)(c)(i) to (vi) who is a judicial officer of the same court as the judicial officer who is the subject of the complaint or referral that is to be investigated by the panel; or

(c) is a person referred to in subsection (1)(c)(i) to (vi) who is a member of a lower court than the judicial officer who is the subject of the complaint or referral that is to be investigated by the panel; or

(d) does not consent to the appointment.

(3) A person who is, or has been, a judicial registrar or the holder of an equivalent office in an Australian court (other than a Victorian court) may only be appointed as a member of a conduct division panel if the panel is investigating a complaint or referral that relates to a judicial registrar.

(4) A person who is, or has been a non-judicial member of VCAT or a member of a prescribed tribunal may only be appointed as a member of a conduct division panel if the panel is investigating a complaint or referral that relates to a non-judicial member of VCAT.

(5) Subsections (3) and (4) do not apply to a person who is, or has been, a judicial officer of a kind referred to in paragraphs (a) to (o) of the definition of judicial officer.




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(6) A person may be appointed to more than one conduct division panel at the same time.

87AAV Establishment of pool

(1) For the purpose of making appointments to a conduct division panel there is to be a pool of persons.

(2) The pool of persons must consist of—

(a) no fewer than 5 persons appointed by the Governor in Council under section 87AAW; and

(b) subject to subsection (3), no fewer than 7 persons appointed by the Governor in Council who—

(i) have been a judicial officer; or

(ii) have been a judge, associate judge, master or magistrate (by whatever name called) of an Australian court (other than a Victorian court); or

(iii) have been the holder of an office equivalent to the office of judicial registrar in an Australian court (other than a Victorian court); or

(iv) have been a non-judicial member of VCAT or a member of a prescribed tribunal.

(3) Of the persons appointed under subsection (2)(b), at least one must have been a judge of a superior court.

87AAW Appointment of persons to pool

(1) The Governor in Council may appoint a person to be a member of the pool of persons on the recommendation of the Attorney-General.




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(2) The Attorney-General may recommend a person of high standing in the community, other than a person who is, or has been—

(a) a judicial officer; or

(b) a judge, associate judge, master or magistrate (by whatever name called) of an Australian court (other than a Victorian court); or

(c) the holder of an office equivalent to the office of judicial registrar in an Australian court (other than a Victorian court); or

(d) a non-judicial member of VCAT or a member of a prescribed tribunal; or

(e) an Australian legal practitioner.

87AAX Conditions for members of pool

(1) A member of the pool of persons—

(a) is a member of the pool for the period, not exceeding 5 years, specified in the instrument of appointment; and

(b) may be reappointed as a member of the pool; and

(c) when performing duties as a member of a conduct division panel, is entitled to the prescribed remuneration and allowances.

(2) A member of a conduct division panel whose membership of the pool expires by effluxion of time, or ceases under section 87AAY(1)(a), (b), (c), (d), (e), (f) or (g), before the panel makes a decision under section 21 of the Judicial Commission Act 2014 in respect of the matter it is investigating,




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remains a member of the panel until the panel makes such a decision.

87AAY Cessation of appointment or removal from pool

(1) A member of the pool of persons appointed under section 87AAW ceases to be a member if the person—

(a) becomes a judicial officer; or

(b) becomes a judge, associate judge, master or magistrate (by whatever name called) of an Australian court (other than a Victorian court); or

(c) becomes the holder of an office equivalent to the office of judicial registrar in an Australian court (other than a Victorian court); or

(d) becomes a non-judicial member of VCAT or member of a prescribed tribunal; or

(e) becomes a member of the Parliament of Victoria or of the Parliament of the Commonwealth or of another State or Territory; or

(f) becomes an Australian legal practitioner; or

(g) becomes a member of the Board; or

(h) delivers a signed letter of resignation to the Governor; or

(i) is found guilty of—

(i) an indictable offence; or

(ii) an offence that, if committed in Victoria, would be an indictable offence; or




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(j) becomes an insolvent under administration.

(2) A member of the pool of persons appointed under section 87AAV(2)(b) ceases to be a member if the person—

(a) delivers a signed letter of resignation to the Governor; or

(b) is found guilty of—

(i) an indictable offence; or

(ii) an offence that, if committed in Victoria, would be an indictable offence; or

(c) becomes an insolvent under administration.

(3) The Judicial Commission may make a recommendation to the Attorney-General for the removal of a member from the pool of persons.

(4) The Governor in Council may remove a member from the pool of persons on the recommendation of the Attorney-General.

(5) The Attorney-General and the Judicial Commission must not make a recommendation under subsection (3) or (4) unless the Attorney-General and the Judicial Commission is satisfied that the member of the pool of persons—

(a) is mentally or physically incapable of satisfactorily carrying out the member's functions as a member of the pool; or

(b) has engaged in improper conduct of a nature or seriousness that is incompatible with being a member of the pool.".




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Division 2—Amendment of Court Services Victoria Act 2014

153 Definitionss. 153

See:Act No.1/2014.Statute Book:www.legislation.vic.gov.au

In section 3 of the Court Services Victoria Act 2014—

(a) in paragraph (f) of the definition of member of the staff, for "2001;" substitute "2001; or";

(b) after paragraph (f) of the definition of member of the staff insert—

"(g) the Director of the Judicial Commission; or

(h) a person employed under section 125 of the Judicial Commission Act 2014;";

(c) insert the following definitions—

"Conduct Division has the same meaning as it has in the Constitution Act 1975;

Judicial Commission has the same meaning as it has in the Constitution Act 1975;".

154 Function of the Court Services Victoria

In section 8 of the Court Services Victoria Act 2014—

(a) in paragraph (b), for "functions." substitute "functions; and";

(b) after paragraph (b) insert—

"(c) to enable the Judicial Commission to perform its functions.".

Part 2—Complaints and Referrals



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155 Functions and powers

(1) In section 25(1)(b) of the Court Services Victoria Act 2014, for "the appointment and" substitute "subject to subsection (1A), the appointment and".

(2) After section 25(1) of the Court Services Victoria Act 2014 insert—

"(1A) In performing the management function of the Chief Executive Officer under subsection (1)(b), the Chief Executive Officer must not interfere with the exercise of functions delegated to the Director of the Judicial Commission by the Judicial Commission or the Conduct Division.".

Division 3—Amendment of Independent Broad-based Anti-corruption Commission Act 2011


See:Act No.66/2011.Reprint No. 1as at11 February 2013and amendingAct Nos66/2011, 79/2012, 5/2013, 28/2013, 63/2013, 70/2013, 1/2014, 17/2014 and 37/2014.LawToday:www.legislation.vic.gov.au

(1) In section 3(1) of the Independent Broad-based Anti-corruption Commission Act 2011—

(a) after paragraph (b) of the definition of integrity body insert—

"(ba) the Judicial Commission;";

(b) after paragraph (f) of the definition of notification to the IBAC insert—




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"(fa) a notification under section 37 of the Judicial Commission Act 2014;";

(c) insert the following definitions—



(2) In section 6 of the Independent Broad-based Anti-corruption Commission Act 2011—

(a) in subsection (1), in the definition of public officer, in paragraph (n), for "a judge, a magistrate" substitute "a judge, a reserve judge, a magistrate, a reserve magistrate";

(b) for subsection (2)(i) substitute—

"(i) a court;

(j) the Conduct Division;

(k) a member of the Conduct Division.".

157 Referral of complaint or notification for investigation by another person or body

(1) After section 73(2)(d) of the Independent Broad-based Anti-corruption Commission Act 2011 insert—

"(da) the Judicial Commission;".

(2) In section 73(3)(b) of the Independent Broad-based Anti-corruption Commission Act 2011—

(a) in paragraph (ii), for "Inspectorate." substitute "Inspectorate; or";

(b) after paragraph (ii) insert—

"(iii) the Judicial Commission.".

158 Provision to the IBAC of information about referred complaint or notification




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In section 78(1) of the Independent Broad-based Anti-corruption Commission Act 2011—

(a) in paragraph (b), for "Inspectorate." substitute "Inspectorate; or";


"(c) a referral to the Judicial Commission.".

159 Withdrawal of referred complaint or notification

In section 79(1) of the Independent Broad-based Anti-corruption Commission Act 2011—

(a) in paragraph (b), for "Inspectorate." substitute "Inspectorate; or";


"(c) a referral to the Judicial Commission.".

Division 4—Amendment of Protected Disclosure Act 2012


See:Act No.85/2012and amendingAct Nos82/2012, 85/2012, 5/2013, 63/2013, 17/2014 and 37/2014.LawToday:www.legislation.vic.gov.au

(1) In section 3 of the Protected Disclosure Act 2012—

(a) insert the following definitions—


Judicial Commission has the same meaning as it has in the Constitution Act 1975;




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Judicial Commission officer has the same meaning as it has in the Judicial Commission Act 2014;

judicial conduct entity means either—

(a) in relation to complaints received under the Judicial Commission Act 2014, the Judicial Commission; or

(b) in relation to the investigation of complaints under the Judicial Commission Act 2014, the Conduct Division;";

(b) after paragraph (d) of the definition of investigating entity insert—

"(e) a judicial conduct entity;".

161 Disclosure of improper conduct or detrimental action

For section 9(3)(f) of the Protected Disclosure Act 2012 substitute—

"(f) a court;

(g) the Conduct Division;

(h) a member of the Conduct Division.".

162 Disclosures that must be made to the IBAC

In section 14 of the Protected Disclosure Act 2012, paragraphs (k) and (l) are repealed.

163 Disclosures that must be made to the IBAC or the Victorian Inspectorate




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In section 15 of the Protected Disclosure Act 2012—

(a) in paragraph (c), for "officer." substitute "officer;";

(b) after paragraph (c) insert—

"(d) a Judicial Commission officer.".

164 New section 16A inserted

After section 16 of the Protected Disclosure Act 2012 insert—

"16A Disclosures that must be made to the IBAC or the Judicial Commission

A disclosure under this Part that relates to any of the following must be made to the IBAC or the Judicial Commission—

(a) a judicial officer;

(b) a member of VCAT who is not a judicial officer.".

165 Notification of disclosure to the IBAC by other entities

In section 21(2) of the Protected Disclosure Act 2012, for "16 or 18" substitute "16, 16A or 18".

166 Circumstances in which information may be disclosed

In section 54 of the Protected Disclosure Act 2012—

(a) in subsection (2)(b), after "Ombudsman Act 1973" insert ", the Judicial Commission Act 2014";

(b) in subsection (3), in the definition of relevant Act, in paragraph (e) for "1958;" substitute "1958; or";




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(c) in subsection (3), in the definition of relevant Act, after paragraph (e) insert—

"(f) the Judicial Commission Act 2014; or

(g) Part IIIAA of the Constitution Act 1975;";

(d) in subsection (3), in paragraph (c) of the definition of witness summons, for "1958." substitute "1958; or";

(e) in subsection (3), in the definition of witness summons, after paragraph (c) insert—

"(d) a requirement to produce a document or thing under section 60 of the Judicial Commission Act 2014; or

(e) a witness summons issued under section 61 of the Judicial Commission Act 2014.".

167 Review of procedures

In section 60(2) of the Protected Disclosure Act 2012, after "Victorian Inspectorate" insert ", the Judicial Commission".

168 Review of procedures established by the IBAC and the Ombudsman

(1) In the heading to section 62 of the Protected Disclosure Act 2012, after "IBAC" insert ", the Judicial Commission".

(2) In section 62(1) and (2) of the Protected Disclosure Act 2012, after "IBAC" (where first occurring) insert ", the Judicial Commission".

169 Offence to disclose certain advice




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In section 74(6) of the Protected Disclosure Act 2012—

(a) after paragraph (c) of the definition of relevant Act insert—

"(ca) the Judicial Commission Act 2014; or

(cb) Part IIIAA of the Constitution Act 1975; or";

(b) after paragraph (b) of the definition of witness summons insert—

"(ba) a requirement to produce a document or thing under section 60 of the Judicial Commission Act 2014; or

(bb) a witness summons issued by the Conduct Division under section 61 of the Judicial Commission Act 2014; or".

Division 5—Amendment of Victorian Inspectorate Act 2011


See:Act No.70/2011.Reprint No. 1as at11 February 2013and amendingAct Nos70/2011, 28/2013, 70/2013, 17/2014 and 37/2014.LawToday:www.legislation.vic.gov.au

In section 3(1) of the Victorian Inspectorate Act 2011—




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(a) after paragraph (c) of the definition of coercive power insert—

"(d) in relation to the Conduct Division—

(i) a power of the Conduct Division to require the production of any document or thing under section 60 of the Judicial Commission Act 2014;

(ii) a power of the Conduct Division to issue a witness summons under section 61 of the Judicial Commission Act 2014; or

(iii) a power of a member of the Conduct Division to examine a person under oath or affirmation under section 69 of the Judicial Commission Act 2014; or

(iv) the power under section 75 of the Judicial Commission Act 2014;";

(b) insert the following definitions—



171 Objects of Act

In section 5 of the Victorian Inspectorate Act 2011—

(a) in paragraph (f), for "and Examiners." substitute "and Examiners; and";




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(b) after paragraph (f) insert—

"(g) monitor the use of coercive powers under the Judicial Commission Act 2014.".

172 Functions of the Victorian Inspectorate

After section 11(4) of the Victorian Inspectorate Act 2011 insert—

"(5) Without limiting the generality of subsection (1), the Victorian Inspectorate has the function in respect of the Judicial Commission to monitor the use of coercive powers under the Judicial Commission Act 2014.".

173 New section 85A inserted

After section 85 of the Victorian Inspectorate Act 2011 insert—

"85A Recommendation to the Judicial Commission

(1) The Victorian Inspectorate may at any time make recommendations to the Judicial Commission for the purposes of the Judicial Commission making guidelines under section 129 of the Judicial Commission Act 2014 in relation to any of the following—

(a) the use of any coercive powers under that Act;

(b) the determination by the Conduct Division regarding whether a hearing or part of a hearing should be open to the public under section 50(3) of that Act.

(2) The Victorian Inspectorate may request the Judicial Commission to give a report to the Victorian Inspectorate stating—




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(a) whether or not the Judicial Commission has implemented the recommendations of the Victorian Inspectorate; and

(b) if the Judicial Commission has not implemented the recommendations, the reason for not implementing the recommendations.".

174 Recommendations must not contain information likely to identify person who makes an assessable disclosure

In section 86(1) of the Victorian Inspectorate Act 2011, for "or 85" substitute ", 85 or 85A".

175 Special reports


"(6A) If the Victorian Inspectorate is aware of an investigation under the Judicial Commission Act 2014 in relation to a matter or person to be included in a report under this section the Victorian Inspectorate must not include in the report any information which would prejudice the investigation under that Act.".

176 Outcome of investigation


"(5) After considering information given to the Victorian Inspectorate regarding the use of coercive powers and any other related

s. 174s. 176Part 2—Complaints and Referrals



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information under the Judicial Commission Act 2014, the Victorian Inspectorate may—

(a) make a recommendation to the Judicial Commission in accordance with section 85A; or

(b) transmit a report under section 87; or

(c) do both actions referred to in paragraphs (a) and (b); or

(d) determine to make no findings or take no action.".

177 Matters to be included in annual report

(1) After section 91(1)(o) of the Victorian Inspectorate Act 2011 insert—

"(oa) details of the extent to which recommendations by the Victorian Inspectorate have been implemented by the Judicial Commission;".

(2) After section 91(9) of the Victorian Inspectorate Act 2011 insert—

"(9A) If the Victorian Inspectorate is aware of an investigation that is being or has been conducted under the Judicial Commission Act 2014 in relation to a matter or person to be included in its annual report, the Victorian Inspectorate must not include in the annual report any information which would prejudice the investigation.".

178 Exemption from Freedom of Information Act 1982

In section 102(2) of the Victorian Inspectorate Act 2011, in the definition of relevant person or body—




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(a) in paragraph (m), for "any Examiner." substitute "any Examiner;";

(b) after paragraph (m) insert—

"(n) the Judicial Commission.".

Division 6—Amendment of Other Acts

179 Children, Youth and Families Act 2005—Definitions

In section 3(1) of the Children, Youth and Families Act 2005 the definition of Chief Magistrate is repealed.

180 Children, Youth and Families Act 2005—New section 509A inserted

After section 509 of the Children, Youth and Families Act 2005 insert—

"509A Administrative responsibility of President

(1) The President is responsible for ensuring the effective, orderly and expeditious discharge of the business of the Court.

(2) The President has the power to do all things necessary or convenient to be done to perform his or her responsibilities under subsection (1).

(3) Nothing in this section limits the responsibilities, functions or powers of the President under this or any other Act.".

181 Children, Youth and Families Act 2005—Repeal of sections 542G to 542I

Sections 542G, 542H and 542I of the Children, Youth and Families Act 2005 are repealed.




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182 Coroners Act 2008—New section 95A inserted

After section 95 of the Coroners Act 2008 insert—

"95A Administrative responsibility of State Coroner

(1) The State Coroner is responsible for ensuring the effective, orderly and expeditious discharge of the business of the Court.

(2) The State Coroner has the power to do all things necessary or convenient to be done to perform his or her responsibilities under subsection (1).

(3) Nothing in this section limits the responsibilities, functions or powers of the State Coroner under this or any other Act.".

183 Coroners Act 2008—Repeal of sections 102G to 102I

Sections 102G, 102H and 102I of the Coroners Act 2008 are repealed.

184 County Court Act 1958—New sections 8E and 8F inserted

After section 8D of the County Court Act 1958 insert—

"8E Administrative responsibility of Chief Judge

(1) The Chief Judge is responsible for ensuring the effective, orderly and expeditious discharge of the business of the Court.

(2) The Chief Judge has the power to do all things necessary or convenient to be done to perform his or her responsibilities under subsection (1).




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(3) Nothing in this section limits the responsibilities, functions or powers of the Chief Judge under this or any other Act.

8F Assignment of duties by Chief Judge

(1) The Chief Judge may assign duties to a judge.

(2) A judge must carry out the duties that are from time to time assigned to him or her by the Chief Judge.".

185 County Court Act 1958—Provision for pensions to County Court judges and their partners

After section 14(22) of the County Court Act 1958 insert—

"(23) For the purposes of this section, a reference to the resignation or retirement of a judge includes a reference to the removal of a judge from office by the Governor in Council under section 87AAB of the Constitution Act 1975 on the ground of proved incapacity if both Houses of the Parliament pray for the removal solely on the ground of proved incapacity.

(24) A removal referred to in subsection (23) is taken to be a resignation or retirement due to the judge having become afflicted with some permanent incapacity disabling the judge from the due execution of the judge's office.".

186 County Court Act 1958—Pension entitlements of associate judges, their partners and children

After section 17B(13) of the County Court Act 1958 insert—

s. 185s. 186Part 2—Complaints and Referrals



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"(14) For the purposes of this section, a reference to the resignation or retirement of an associate judge includes a reference to the removal of an associate judge from office by the Governor in Council under section 87AAB of the Constitution Act 1975 on the ground of proved incapacity if both Houses of the Parliament pray for the removal solely on the ground of proved incapacity.

(15) A removal referred to in subsection (14) is taken to be a resignation or retirement due to the associate judge having become afflicted with some permanent incapacity disabling the associate judge from the due execution of the associate judge's office.".

187 County Court Act 1958—Repeals

Sections 12A(2), 17R, 17S and 17T of the County Court Act 1958 are repealed.

188 County Court Act 1958—Council of Judges

At the foot of section 87 of the County Court Act 1958 insert—"Note

See Divisions 1 and 2 of Part 5 of the Judicial Commission Act 2014 which specifies functions for the Council of Judges.".

189 Magistrates' Court Act 1989—Section 9B(2) repealed

Section 9B(2) of the Magistrates' Court Act 1989 is repealed.

190 Magistrates' Court Act 1989—New section 12A inserted

After section 12 of the Magistrates' Court Act 1989 insert—




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"12A Administrative responsibility of Chief Magistrate

(1) The Chief Magistrate is responsible for ensuring the effective, orderly and expeditious discharge of the business of the Court.

(2) The Chief Magistrate has the power to do all things necessary or convenient to be done to perform his or her responsibilities under subsection (1).

(3) Nothing in this section limits the responsibilities, functions or powers of the Chief Magistrate under this or any other Act.".

191 Magistrates' Court Act 1989—Council of magistrates

At the foot of section 15 of the Magistrates' Court Act 1989 insert—"Note

See Divisions 1 and 2 of Part 5 of the Judicial Commission Act 2014 which specifies functions for the Council of magistrates.".

192 Magistrates' Court Act 1989—Sections 16F to 16H repealed

Sections 16F, 16G and 16H of the Magistrates' Court Act 1989 are repealed.

193 Ombudsman Act 1973

(1) Insert the following definition in section 2(1) of the Ombudsman Act 1973—




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"Judicial Commission has the same meaning as in the Constitution Act 1975;".

(2) After section 16L(2)(h) of the Ombudsman Act 1973 insert—

"(ha) the Judicial Commission;".

(3) For item 7 of Schedule 2 to the Ombudsman Act 1973 substitute—

"7 A Victorian court, VCAT and any judicial officers and non-judicial members of VCAT within the meaning of the Judicial Commission Act 2014 and any judicial employee employed under Division 3 of Part 6 of the Public Administration Act 2004".

(4) After item 7 in Schedule 2 to the Ombudsman Act 1973 insert—

"7A The Judicial Commission or the Conduct Division under the Constitution Act 1975".

(5) After item 10 in Schedule 3 to the Ombudsman Act 1973 insert—

"10AA The Judicial Commission".

194 Parliamentary Committees Act 2003

(1) Insert the following definition in section 3 of the Parliamentary Committees Act 2003—

"Judicial Commission has the same meaning as in the Constitution Act 1975;".

(2) In section 6A(1)(f), (g) and (h) of the Parliamentary Committees Act 2003, after "Ombudsman officers" insert "or the Judicial Commission".




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(3) In section 6A(1)(i) of the Parliamentary Committees Act 2003, for "1973." substitute "1973; and".

(4) After section 6A(1)(i) of the Parliamentary Committees Act 2003 insert—

"(j) if so required or permitted under this Act, to inquire into, consider and report to Parliament on the operation of the Judicial Commission Act 2014.".

(5) In section 6A(2)(f)(iii) of the Parliamentary Committees Act 2003, for "relevant Act." substitute "relevant Act; or".

(6) After section 6A(2)(f) of the Parliamentary Committees Act 2003 insert—

"(g) investigate the conduct or capacity of a judicial officer or non-judicial member of VCAT; or

(h) examine the merits or basis of a complaint or referral which is being or has been considered under the Judicial Commission Act 2014; or

(i) reconsider the findings, recommendations, determinations or other decisions made or actions taken by the Judicial Commission or the Conduct Division under the Judicial Commission Act 2014 in relation to a complaint, referral or investigation under that Act.".

(7) After section 6A(2) of the Parliamentary Committees Act 2003 insert—

"(3) In this section—




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complaint has the same meaning as in the Judicial Commission Act 2014;

Conduct Division has the same meaning as in the Constitution Act 1975;

judicial officer has the same meaning as in the Constitution Act 1975;

non-judicial member of VCAT has the same meaning as in the Judicial Commission Act 2014;

referral has the same meaning as in the Judicial Commission Act 2014.".

195 Public Administration Act 2004

After section 6(1)(c) of the Public Administration Act 2004 insert—

"(ca) the Judicial Commission of Victoria;".

196 Supreme Court Act 1986—Amendment of section 16

In section 16 of the Supreme Court Act 1986, for "The President" substitute "Subject to section 28AAA, the President".

197 Supreme Court Act 1986—Amendment of section 28

At the foot of section 28 of the Supreme Court Act 1986 insert—"Note

See Divisions 1 and 2 of Part 5 of the Judicial Commission Act 2014 which specifies functions for the Council of Judges.".

198 Supreme Court Act 1986—New Division inserted




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After section 28 of the Supreme Court Act 1986 insert—

"Division 5A—Powers of Chief Justice

28AAA Administrative responsibility of Chief Justice

(1) The Chief Justice is responsible for ensuring the effective, orderly and expeditious discharge of the business of the Court.

(2) The Chief Justice has the power to do all things necessary or convenient to be done to perform his or her responsibilities under subsection (1).

(3) Nothing in this section limits the responsibilities, functions or powers of the Chief Justice under this or any other Act.

28AAB Assignment of duties by Chief Justice

(1) The Chief Justice may assign duties to a Judge of the Court.

(2) A Judge of the Court must carry out the duties that are from time to time assigned to him or her by the Chief Justice.".

199 Supreme Court Act 1986—Pension entitlements of Associate Judges, their partners and children

After section 104A(14) of the Supreme Court Act 1986 insert—

"(15) For the purposes of this section, a reference to the resignation or retirement of an Associate Judge includes a reference to the removal of an Associate Judge from office by the Governor in Council under section 87AAB of the Constitution Act 1975 on the ground of proved incapacity if both Houses of the Parliament pray for the




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removal solely on the ground of proved incapacity.

(16) A removal referred to in subsection (15) is taken to be a resignation or retirement due to the Associate Judge having become afflicted with some permanent incapacity disabling the Associate Judge from the due execution of the Associate Judge's office.".

200 Supreme Court Act 1986—Sections 113I, 113J and 113K repealed

Sections 113I, 113J and 113K of the Supreme Court Act 1986 are repealed.

201 Victorian Civil and Administrative Tribunal Act 1998

Sections 22, 23 and 24 of the Victorian Civil and Administrative Tribunal Act 1998 are repealed.

Division 7—Amendments consequential on Legal Profession Uniform Law Application Act 2014

202 Amendments consequential on Legal Profession Uniform Law Application Act 2014

In section 3, the definitions of Australian lawyer and Australian legal practitioner are repealed.

Division 8—Repeal of Part

203 Repeal of Part

This Part is repealed on 1 June 2016.Note

The repeal of this Part does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).

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SCHEDULES

SCHEDULE 1Section 3

INTEGRITY BODIES

1 The Auditor-General;

2 The Commissioner for Law Enforcement Data Security;

3 The Health Services Commissioner;

4 The IBAC;

5 The Ombudsman;

6 The Privacy Commissioner;

7 The Victorian Inspectorate;

8 A person or body of another State, a Territory or the Commonwealth that has functions corresponding to any or all of the functions of a person or body referred to in item 1, 2, 3, 4, 5, 6 or 7;

9 The Australian Crime Commission or another Commonwealth body having functions corresponding to any or all of the functions of that Commission;

10 The Judicial Commission of New South Wales or another New South Wales body having functions corresponding to any or all of the functions of that Commission;

11 A prescribed person or body that has an integrity function.

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Sch. 1Part 2—Complaints and Referrals



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SCHEDULE 2Section 144

SAVINGS AND TRANSITIONAL PROVISIONS

1 Matters referred under the Constitution Act 1975

Any matter that was referred to an investigating committee under section 87AAD of the Constitution Act 1975 before the commencement of section 150 of this Act may continue to be investigated by that committee under Part IIIAA of the Constitution Act 1975 after the commencement of section 152 of this Act and Part IIIAA of the Constitution Act 1975 as in force before that commencement continues to apply in respect of that matter.

2 Application of Act to conduct occurring before commencement of section 5 or 6

This Act applies to a complaint or referral that is made on or after the commencement of section 5 or 6 of this Act irrespective of when the conduct that is the subject of the complaint or referral is alleged to have occurred.

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Sch. 2Part 2—Complaints and Referrals



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ENDNOTES

By Authority. Government Printer for the State of Victoria.

Endnotes



Judicial Commission Bill 2014FILE/571039bi1.docx · Web viewA Bill for an Act to establish the...

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Transcript of Judicial Commission Bill 2014FILE/571039bi1.docx · Web viewA Bill for an Act to establish the...