Judicial Commission of Victoria Act 2016

Judicial Commission of Victoria Act 2016

No. 16 of 2016

table of provisions

SectionPage

Part 1—Preliminary

1Purposes

2Commencement

3Definitions

4Disclosure considerations

Part 2—Complaints and referrals

5Complaints

6Complaints by professional bodies

7Referrals by head of jurisdiction

8Referrals by Attorney-General

9Referrals by the IBAC

10Complaint or referral may be made despite other proceeding

11Notification to the IBAC does not affect complaint or referral

12Officer concerned not required to disqualify themselves from proceeding

Part 3—Investigations by the Judicial Commission

Division 1—Procedure in investigating complaints and referrals by Judicial Commission

13Outcome of consideration of matter by Judicial Commission

14Officer concerned to be given opportunity to respond if matter to be referred

15Consultation with head of jurisdiction

16Dismissal of complaints and referrals by Judicial Commission

17Withdrawal of complaints and referrals

18Judicial Commission must adjourn investigation of certain complaints or referrals

19Referral to investigating panel, nominated head of jurisdiction or nominated person

Division 2—Notifications by Judicial Commission

20Notification of head of jurisdiction

21Notification of officer concerned

22Notification of Attorney-General

23Notification of complainant

24Content of notice relating to assessable disclosures

Division 3—Notifications to the IBAC and the Victorian Inspectorate

25Mandatory notification of corrupt conduct to the IBAC

26Mandatory notification to the Victorian Inspectorate

Division 4—General powers and procedures of Judicial Commission

27Request for further information

28Powers as to court or tribunal documents

29Requirement to undergo medical examination

30Effect of failure to undergo medical examination

31Power to adjourn investigation

32Considerations when matter the subject of other investigation or legal proceedings

Part 4—Investigations by an investigatingpanel

Division 1—Investigating panel procedure

33Role of investigating panel

34Outcome of investigating panel investigation

35Dismissal of complaints and referrals by investigating panel

36An investigating panel must adjourn investigation of certain complaints or referrals

37Constitution of an investigating panel for making decisions

38Consultation with head of jurisdiction

39Report to Governor

40Report to Attorney-General

41Referral to nominated head of jurisdiction or nominated person

42Requirements before making a report

43Notification of officer concerned and Judicial Commission

44Notification of head of jurisdiction

45Notification of Attorney-General

46Notification of complainant

47Content of notice relating to assessable disclosures

Division 2—Notifications to the IBAC and the Victorian Inspectorate

48Notification to the IBAC by an investigating panel

49Notification to the Victorian Inspectorate by an investigating panel

50Extension or referral of matter

Part 5—Investigation powers and procedures

Division 1—General powers and procedures of investigating panels

51Investigating panel proceedings

52General requirements

53Investigating panel may engage Australian lawyer to assist

54Request for further information

55Hearings and written submissions

56Powers as to court or tribunal documents

57Requirement to undergo medical examination

58Effect of failure to undergo medical examination

59Power to adjourn investigation

60Considerations when matter the subject of other investigation or legal proceedings

Division 2—Hearings

61Notice of hearing

62Hearing procedure

63Offence to be present at closed hearing

64Protection of lawyers and witnesses

65Notification of certain matters to the Judicial Commission

66Notification of certain matters to the Victorian Inspectorate

67Copies of particular guidelines to be provided to Victorian Inspectorate

68Request for information by the Victorian Inspectorate

Division 3—Additional powers

69Power to require production of documents

70Witness summons

71Content and form of witness summons

72Witness summons directed to person under 16 years

73Service of witness summons

74Supreme Court may order service by other means

75Witness already held in custody

76Specific provisions relating to witnesses

77Actions to be taken before questioning of a witness or requiring production of a document or other thing

78Power to examine on oath or affirmation

79Offence for summoned witness to fail to attend hearing

80Offence for summoned witness to refuse or fail to answer question

81Offence for summoned witness to fail to produce document or thing

82Offence for summoned witness to fail to take oath or make affirmation

83Allowances for compliance with witness summons

Division 4—Search warrant powers

84Search warrant

85Search warrant in relation to court or VCAT premises

86Procedure for executing a search warrant

87Copies or receipts to be given for documents or other things

88Return of documents and other things

89Assistance in executing search warrants

Division 5—Privilege

90Privilege against self-incrimination abrogated

91Journalist privilege does not apply

92Procedure for determining claims of privilege—notice requiring production or witness summons

93Procedure for determining privilege—search warrants

94Application to Supreme Court to determine privilege

95Determination of claim

96Offence to open sealed envelope or have access to document or thing

Part 6—Further provisions for investigations

Division 1—Standing down

97Standing down of certain judicial officers or non-judicial members of VCAT by principal head of jurisdiction

98Standing down of officer concerned on recommendation of Judicial Commission or an investigating panel

99Effect of standing down of certain judicial officers and nonjudicial members of VCAT

100Effect of standing down of judicial officer under section98(2)(b)

101Consultation requirements

102Alteration to or revocation of standing down

103Reinstatement of officers concerned

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

104Determination by relevant council of judges

105Meeting of relevant council of judges to make determination

Division 3—Process for medical examinations

106Conduct of medical examination

107Report after medical examination

108Further medical report may be provided by officer

Division 4—Nominating head of jurisdiction orother person

109Power to nominate additional head of jurisdiction

110Power to nominate person for Chief Justice, Chief Judge or Chief Magistrate

Division 5—Statement of reasons

111Person not entitled to statement of reasons

Division 6—Costs

112Costs

Part 7—Action to be taken on referral by Judicial Commission or an investigating panel

Division 1—Preliminary

113Definition

114Functions of head of jurisdiction not limited

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

115Actions on receiving Judicial Commission report

116Matters to be taken into account in making decision as to action

117Procedures on making a decision as to action

118Where there is more than one nominated head of jurisdiction

119Notice of action to be given to complainant or referrer

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

120Power to recommend removal of non-judicial member of VCAT on receiving report

121Power of Governor in Council to remove nonjudicial member of VCAT

Part 8—Administration

Division 1—The Judicial Commission and theBoard

122Delegation by Judicial Commission

123Acting judicial members of the Board

124Acting appointed members of the Board

125Meetings of the Board

126Decisions and proceedings of the Board

127Application of provisions of Part 5 of the Public Administration Act 2004

Division 2—Director and staff of Judicial Commission

128Appointment of Director

129Functions of Director

130Removal of Director from office

131Delegation by Director

132Acting Director

133Engagement of consultants

Division 3—Guidelines and reports

134Guidelines

135Annual report of the Judicial Commission

Division 4—Miscellaneous

136Immunity of members of the Board

137Immunity of member of an investigating panel

138Use and disclosure of information

139Release of information to public

Part 9—General

140Vexatious complainants

141Offence to make statement which is false or misleading

142Disclosure of information

143Exemption from Freedom of Information Act 1982

144Exemption from Health Records Act 2001

145Exemption from Privacy and Data Protection Act2014

146Regulations

147Savings and transitional provisions

Part 10—Amendment of Constitution Act1975

148Repeal of section 81A(2)

149As to pensions of Judges of the Supreme Court and their partners and children

150Judges not to hold any other place of profit

151New Division heading inserted

152Definitions

153New Division heading inserted

154Removal from judicial office

155Repeal of sections 87AAC to 87AAH

156New Divisions 3 to 6 of Part IIIAA inserted

Part 11—Amendment of other Acts

Division 1—Amendment of Court Services Victoria Act 2014

157Definitions

158Function of Court Services Victoria

159Functions and powers

160Budget

Division 2—Amendment of Independent Broad-based Anti-corruption Commission Act 2011

161Definitions

162Definitions of public body, public officer and public sector

163Directions

164Referral of complaint or notification for investigation by another person or body

165New section 74A inserted

166Withdrawal of referred complaint or notification

Division 3—Amendment of Protected Disclosure Act 2012

167Definitions

168Disclosure of improper conduct or detrimental action

169Disclosures that must be made to the IBAC

170Disclosures that must be made to the IBAC or the Victorian Inspectorate

171New section 16A inserted

172Notification of disclosure to the IBAC by other entities

173Circumstances in which information may be disclosed

174Review of procedures

175Review of procedures established by the IBAC and the Ombudsman

176Offence to disclose certain advice

Division 4—Amendment of Victorian InspectorateAct 2011

177Definitions

178Objects of Act

179Functions of the Victorian Inspectorate

180New section 85A inserted

181Recommendations must not include information likely to identify person who makes an assessable disclosure

182Special reports

183Outcome of investigation

184Matters to be included in annual report

185Exemption from Freedom of Information Act 1982

Division 5—Amendment of other Acts

186Children, Youth and Families Act 2005—Definitions

187Children, Youth and Families Act 2005—Newsection 509A inserted

188Children, Youth and Families Act 2005—Repeal of sections542G to 542I

189Coroners Act 2008—New section 95A inserted

190Coroners Act 2008—Repeal of sections 102G to 102I

191County Court Act 1958—New section 8E

192County Court Act 1958—Repeal of section 12A(2)

193County Court Act 1958—Provision for pensions to County Court judges and their partners

194County Court Act 1958—Pension entitlements of associate judges, their partners and children

195County Court Act 1958—Repeal of sections 17R to17T

196County Court Act 1958—Council of Judges

197Magistrates' Court Act 1989—Repeal of section9B(2)

198Magistrates' Court Act 1989—New section 12A inserted

199Magistrates' Court Act 1989—Council of magistrates

200Magistrates' Court Act 1989—Repeal of sections16F to 16H

201Ombudsman Act 1973—Definitions

202Ombudsman Act 1973—Disclosure of information by the Ombudsman

203Ombudsman Act 1973—Amendment of Schedules 2 and 3

204Parliamentary Committees Act 2003—Definitions

205Parliamentary Committees Act 2003—Accountability and Oversight Committee

206Public Administration Act 2004—Definition

207Supreme Court Act 1986—Arrangement of business of Court of Appeal

208Supreme Court Act 1986—Council of Judges

209Supreme Court Act 1986—New Division 5A inserted

210Supreme Court Act 1986—Pension entitlements of Associate Judges, their partners and children

211Supreme Court Act 1986—Repeal of sections 113I to 113K

212Victorian Civil and Administrative Tribunal Act1998

Division 6—Repeal of amending Parts

213Repeal of Part 10 and this Part

Part 12—Amendment of this Act

Division 1—Amendments relating to dual commission holders

214Definition

215Effect of standing down of judicial officer under section98(2)(b)

216Meeting of relevant council of judges to make determination

Division 2—Repeal of Part 12

217Repeal of Part 12

Schedule 1—Integrity bodies

Schedule 2—Savings and transitional provisions

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Endnotes

1General information

SectionPage

Victoria

SectionPage

Judicial Commission of Victoria Act 2016[†]

No. 16 of 2016

[Assented to 19 April 2016]

Judicial Commission of Victoria Act 2016
No. 16 of 2016

The Parliament of Victoriaenacts:

Schedule 2—Savings and transitional provisions

Judicial Commission of Victoria Act 2016
No. 16 of 2016

Part 1—Preliminary

1Purposes

The main purposes of this Act are—

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

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

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

2Commencement

(1)Subject to subsections (2), (3) and (4), this Act comes into operation on a day or days to be proclaimed.

(2)If a provision of this Act (other than Part 12) does not come into operation before 1 July 2017, it comes into operation on that day.

(3)If a provision of Division 1 of Part 12 does not come into operation before 1 June 2017, it comes into operation on that day.

(4)If Division 2 of Part 12 does not come into operation before 1 June 2018, it comes into operation on that day.

3Definitions

(1)In this Act—

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 Part IIIAA of the Constitution Act 1975;

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

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;

Boardhas the same meaning as in Part IIIAA of the Constitution Act 1975;

coercive power means—

(a)in relation to an investigating panel—

(i)a power to require the officer concerned to undergo a medical examination under section 57; or

(ii)a power of an investigating panel to require the production of anydocument or thing under section69; or

(iii)a power of an investigating panel to issue a witness summons; or

(iv)a power of a member of an investigating panel to examine a person under oath or affirmation under section 78; or

(v)the power to apply for a search warrant under section 84; or

(b)in relation to the Judicial Commission, a power to require the officer concerned to undergo a medical examination under section 29;

complaint means a complaint made under section5 or 6;

corrupt conduct has the meaning given by section4 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 128;

disclosure considerations has the meaning given by section 4;

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 Anticorruption 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;

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

investigating panelhas the same meaning as in Part IIIAA of the Constitution Act 1975;

Judicial Commissionhas the same meaning as in Part IIIAA of the Constitution Act 1975;

Judicial Commission officer means—

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

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

(c)an employee referred to in section 36 of the Court Services Victoria Act 2014 who provides assistance to the Judicial Commission, an investigating panel or the Director; or

(d)a person engaged by the Judicial Commission under section 133;

Judicial Commission report—see section 113;

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

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

law enforcement agency means—

(a)Victoria Police; or

(b)the Victorian WorkCover Authority within the meaning of the Workplace Injury Rehabilitation and Compensation Act 2013; or

(c)the Environment Protection Authority established under section 5 of the Environment Protection Act 1970; or

(d)the Australian Federal Police; or

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

(f)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 body referred to in paragraph (b) or (c); or

(g)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;

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 Act1998;

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 109, 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 110;

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 nonjudicial member of VCAT in respect ofwhom the complaint or referral is made;

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;

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 section3(1) of the Corrections Act1986; or

(b)a youth justice facility within the meaning of section 482A of the Children, Youth and Families Act2005;

privilege means—

(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 selfincrimination; 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 a judicial officer of the Supreme Court, the Council of the Judges within the meaning of section28 of the Supreme Court Act1986; or

(b)in relation to a judicial officer of theCounty Court, the Council of theJudges within the meaning of section87 of the County Court Act1958; 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)employees referred to in section 36 of the Court Services Victoria Act 2014 who provide assistance to the Judicial Commission, an investigating panel or the Director; and

(b)persons engaged by the Judicial Commission under section 133;

vexatious complainant means a person in respect of whom a declaration under section 140 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 Act2012;

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;

Victorian Inspectorate has the same meaning as in the Victorian Inspectorate Act 2011;

witness summons means a summons issued under section 70.

(2)In this Act—

(a)a reference to a function includes a reference to a power and a duty; and

(b)a reference to the exercise of a function includes, where the function is a duty, a reference to the performance of the duty; and

(c)a reference to the functions of a judicial officer or non-judicial member of VCAT includes a reference to any functions of an office to which the person is appointed or assigned or which the person holds including the following—

(i)in the case of an appointment as head of jurisdiction, the functions as head of jurisdiction;

(ii)in the case of an appointment or assignment of a judicial officer to another court or tribunal, any functions as a member of that court or tribunal.

4Disclosure considerations

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

(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;