Judicial Commissions Act 2024

Judicial Commissions Act 2024

This Act may be cited as the Judicial Commissions Act 2024.

This Act commences on a day to be proclaimed.

In this Act – Associate Judge has the same meaning as in the Supreme Court Act 1959; authorised person means – in relation to the council – a person declared in writing by the head of the council to be an authorised person under this Act; and in relation to a commission – a person declared in writing by the presiding member of the commission to be an authorised person, under this Act, while the commission is in operation;Chief Magistrate has the same meaning as in the Magistrates Court Act 1987; commission means a judicial commission appointed under section 31; commission member, in relation to a commission, means a person appointed under section 15 as a member of the commission; complaint, in relation to a judicial officer, means – a complaint made under section 27 in respect of the judicial officer; or a resolution of both Houses of Parliament, in accordance with section 28, in respect of a matter relating to the judicial officer; council means the judicial council established by section 6; council member means a person specified in section 6(2) as a member of the council, including a person acting as, or the delegate of, such a person; head of jurisdiction means – for a judge of this State – the Chief Justice; or for a magistrate – the Chief Magistrate; or for a presidential member of TASCAT – the President of the Tribunal appointed under section 12(2) of the Tasmanian Civil and Administrative Tribunal Act 2020; head of the council– see section 6; judge, of this State, includes – a judge of the Supreme Court; and the Associate Judge; and a person who is appointed as an acting judge under section 3 of the Supreme Court Act 1887; judicial officer means – a judge of this State; or a magistrate; or a presidential member of TASCAT; magistrate means a magistrate within the meaning of the Magistrates Court Act 1987; premises includes all or any part of – a building or other structure; and an aircraft, vehicle or vessel; and a place, whether or not enclosed or built on; presidential member of TASCAT includes – the person appointed as President of the Tribunal under section 12(2) of the Tasmanian Civil and Administrative Tribunal Act 2020; and each person appointed as a Deputy President of the Tribunal under section 26(2) of the Tasmanian Civil and Administrative Tribunal Act 2020; presiding member, in relation to a commission, means the presiding member of the commission appointed under section 15; relevant judicial officer, in relation to a complaint, means the judicial officer who is the subject of the complaint; supervisory entity, in relation to a judicial officer, means – if the judicial officer is a head of jurisdiction, the council; or in any other case, the relevant head of jurisdiction for the judicial officer;TASCAT means the Tasmanian Civil and Administrative Tribunal.

In this Act, a reference to a complainant in respect of a complaint includes a reference to – the person who made the complaint to the council; and if the complaint is made anonymously or is referred to the council by a third party, the person whom the council considers to be the most appropriate person to be deemed to be the complainant in respect of the complaint.

A judicial officer may only be suspended or removed from office in accordance with –

this Act; or in the case of the removal of a judge of the Supreme Court, the Supreme Court (Judges’ Independence) Act 1857; or in the case of the suspension or removal of the Associate Judge, the Supreme Court Act 1959; or in the case of the removal of an acting judge appointed under section 3 of the Supreme Court Act 1887 – the terms and conditions of the acting judge’s appointment under that Act; or the Supreme Court (Judges’ Independence) Act 1857; or in the case of the suspension or removal of a magistrate, the Magistrates Court Act 1987; or in the case of the suspension or removal of a presidential member of TASCAT, the Tasmanian Civil and Administrative Tribunal Act 2020.

This Act applies to the conduct of a judicial officer regardless of whether the conduct occurred before, or after, the commencement of this Act.

The judicial council is established.

The membership of the judicial council consists of – the Chief Justice; and the Chief Magistrate; and one member, appointed by the Minister, who is an Australian lawyer jointly nominated by – the Council of the Law Society, continued under section 621 of the Legal Profession Act 2007; and the Tasmanian Bar, within the meaning of the Legal Profession Act 2007; and one member, appointed by the Minister – who is not, and has not been for the last 5 years, an Australian legal practitioner; and who is not, and never has been, a member of a Parliament of a State, a Territory or the Commonwealth; and who has, in the Minister’s opinion, the qualifications and experience to assist the council in the performance of its functions, or the exercise of its powers, under this Act.

After appointing a person as a council member under subsection (2)(d), the Minister must table notification of the appointment before each House of Parliament as soon as practicable after the appointment.

If either House of Parliament passes a resolution, of which notice has been given within the first 10 sitting-days of the House after a notification of the appointment of a person as council member was tabled under subsection (3), that such an appointment is unsuitable – that person is taken to have been removed from the office of council member; and the removal of that person from the office of council member does not affect the validity of any action taken, under this Act before the passing of the resolution, by – the council, while the person held the office of council member; or the person, while acting as a council member.

Before appointing a person as a council member under subsection (2)(c) or (d), the Minister must consult with the Chief Justice and the Chief Magistrate.

The Chief Justice is the head of the council.

Despite subsection (6), if the Chief Justice is unable to perform the functions of the head of the council – the Chief Magistrate is to be the head of the council; or if the Chief Magistrate is also unable to perform the functions of the head of the council, the delegate of the Chief Justice is to be the head of the council.

Schedule 1 applies in respect of the appointment of a council member appointed under subsection (2)(c) or (d).

The council has the following functions:to receive complaints in relation to judicial officers; to examine complaints in relation to judicial officers; to refer certain complaints to a commission, the relevant head of jurisdiction or any other relevant reviewing or disciplinary entity; to make guidelines, in accordance with subsection (2); to give information and education about the process for complaints in relation to judicial officers; to provide recommendations in respect of professional development, education or training for judicial officers; any other function given to the council under this Act or any other Act.

The council may make guidelines in respect of the following matters:the practices and procedures of the council; the practices and procedures of a commission; the practices and procedures in relation to persons who are vulnerable, or persons with a disability, including but not limited to – the making of complaints under this Act; and the supports and adjustments that are to be offered in respect of a hearing, or other matter, under this Act; the procedures that may be used to determine, if required, the reasonable costs of a party including, but not limited to, by reference to rules, guidelines or other processes of one or more judicial entities; the factors that may be considered when determining whether a hearing under this Act should be held in public or in private; the roles and functions of a person or class of persons under this Act; any other matter in respect of which the council considers guidelines may be necessary or convenient.

The council is to ensure that guidelines made under subsection (2) – are published on a website that – is operated by, or on behalf of, the council; and is accessible by members of the public; and are published in any other manner that the council considers appropriate; and remain published under paragraph (a) while the guidelines remain in effect.

The council has all the powers necessary to perform its functions under this Act.

A council member who is the complainant, or relevant judicial officer, in relation to a complaint may not perform a function, or exercise a power, as a council member in relation to that complaint.

If a majority of council members reasonably believe that another council member has a known, or perceived, bias in respect of a complaint or the relevant judicial officer, the majority of council members may determine that the other council member may not perform a function, or exercise a power, as a council member in relation to that complaint.

The council may arrange with the Secretary of the Department for one or more of the following to be made available to the council to assist the council in the performance of its functions and the exercise of its powers:the services of one or more State Service employees or other persons employed or engaged by the Department; facilities and goods of the Department, or such other facilities and goods as may reasonably be required by the council.

Subject to and in accordance with the State Service Act 2000, a person may be employed for the purpose of enabling the council to perform its functions or exercise its powers.

For the avoidance of doubt, State Service employees, or other persons, made available to the council under subsection (1), or employed under subsection (2), may serve the council, in any capacity, in conjunction with their existing State Service employment.

The Chief Justice may delegate a function or power of the Chief Justice under this Act to a judge of this State other than this power of delegation.

The Chief Magistrate may delegate a function or power of the Chief Magistrate under this Act to a magistrate other than this power of delegation.

A function or power delegated under this section may only be performed or exercised by the delegate if the delegator is unable, for any reason, to perform the function or exercise the power.

For the purposes of subsection (3), a delegator is not unable to perform a function, or exercise a power, if the delegator – has a discretion as to whether to perform the function or exercise the power; and has elected to use that discretion by not performing the function or exercising the power.

The council may delegate a function or power of the council under this Act to a member of the council’s staff other than the following functions:

the dismissal of a complaint, other than under section 35(2)(a)(i), (2)(c)(ii) or (2)(d);

the referring of a complaint;

the appointing of a commission in respect of a complaint.