Judicial Conduct Commissioner (Miscellaneous) Amendment Bill 2024 (SA)

South Australia Judicial Conduct Commissioner (Miscellaneous) Amendment Bill 2024 A Bill For An Act to amend the Judicial Conduct Commissioner Act 2015.

Contents Part 1—Preliminary 1 Short title 2 Commencement Part 2—Amendment of Judicial Conduct Commissioner Act 2015 3 Amendment of section 4—Interpretation 4 Insertion of section 6A 6A Commissioner to publish guidelines 5 Amendment of section 14—Request to postpone consideration of complaint 6 Amendment of section 23—Functions and procedures of panel 7 Insertion of sections 23A, 23B and 23C 23A Appointment of counsel to assist inquiry 23B Representation and participation 23C Special arrangements for protecting witnesses from embarrassment, distress etc when giving evidence 8 Insertion of sections 24A and 24B 24A Actions to be taken by panel before questioning witness etc 24B Examination etc of complainant and witnesses 9 Amendment of section 30—Immunity from liability

The Parliament of South Australia enacts as follows: Part 1—Preliminary 1—Short title This Act may be cited as the Judicial Conduct Commissioner (Miscellaneous) Amendment Act 2024. 2—Commencement This Act comes into operation on a day to be fixed by proclamation.

Part 2—Amendment of Judicial Conduct Commissioner Act 2015 3—Amendment of section 4—Interpretation (1) Section 4(1), definition of complainant—after "section 12(1);" insert: Note— Other persons against whom the alleged conduct of a judicial officer is directed may also be complainants, despite not having made a complaint under section 12(1)—see subsection (1a). (2) Section 4—after subsection (1) insert: (1a) For purposes of this Act, a reference to a complainant will, if the alleged conduct of a judicial officer that is the subject of a complaint is directed at a person or persons other than the person who makes a complaint under section 12(1), be taken to include a reference to each such person (and the Commissioner or a judicial conduct panel may, but need not, deal with the person as if they had made a complaint under that section). 4—Insertion of section 6A After section 6 insert: 6A—Commissioner to publish guidelines (1) The Commissioner must, by notice in the Gazette, prepare and publish guidelines for the purposes of this Act. (2) The Commissioner must, in preparing guidelines under this section, consult the Chief Justice of the Supreme Court. (3) Without limiting the matters that may be included in guidelines prepared under this section, the guidelines must make provisions setting out— (a) how meetings of judicial conduct panels are to be called; and (b) how business is to be conducted at meetings of judicial conduct panels; and (c) how judicial conduct panels are to conduct examinations of complaints under this Act; and (d) how judicial conduct panels are to conduct inquiries under this Act. (4) The Commissioner must cause a copy of guidelines published under this section, as in force from time to time, to be published on a website determined by the Commissioner. 5—Amendment of section 14—Request to postpone consideration of complaint (1) Heading to section 14—delete the heading and substitute: Postponement of consideration of complaint (2) Section 14—after its present contents (now to be designated as subsection (1)) insert: (2) If a complaint under section 12(1) relating to a judicial officer is made during the course of a hearing conducted by the judicial officer (whether alone or with others), the Commissioner may, if the Commissioner considers it appropriate to do so, postpone consideration of the complaint— (a) for a specified period; or (b) until the hearing has been completed. 6—Amendment of section 23—Functions and procedures of panel Section 23(3)(c)—delete "approved by the Chief Justice of the Supreme Court" and substitute: published under section 6A 7—Insertion of sections 23A, 23B and 23C After section 23 insert: 23A—Appointment of counsel to assist inquiry (1) The Attorney‑General may, at the request of the presiding member of a judicial conduct panel, appoint counsel to assist in an inquiry under this Part. (2) The Attorney‑General must, before appointing counsel under this section, consult with, and have regard to any submissions of, the judicial conduct panel in respect of the proposed appointment. 23B—Representation and participation (1) A judicial conduct panel— (a) must allow the judicial officer who is the subject of the complaint, a complainant or a witness appearing before the inquiry to be legally represented in the inquiry; and (b) may allow, to the extent and in the manner determined by the panel, any other person to participate or be legally represented in an inquiry. (2) In deciding whether to allow a person to be legally represented under subsection (1)(b), the judicial conduct panel may have regard to the following matters: (a) the nature of the inquiry and the matters to which the inquiry relates; (b) whether the person has any direct or special interest in the matters to which the inquiry relates; (c) the role that the person played in relation to the matters to which the inquiry relates; (d) the likelihood that the panel may make an adverse finding against the person; (e) the ability of the person to assist the inquiry; (f) the age of the person; (g) any other matter the panel considers relevant. 23C—Special arrangements for protecting witnesses from embarrassment, distress etc when giving evidence (1) Section 13 of the Evidence Act 1929 will be taken to apply in relation to an inquiry under this Part, and, for that purpose— (a) a reference in that section to a court or a judge will be taken to be reference to the judicial conduct panel undertaking the inquiry; and (b) a reference in that section to a trial will be taken to be reference to the inquiry; and (c) a reference in that section to a defendant will be taken to be reference to the judicial officer to whom the inquiry relates; and (d) the judicial conduct panel may make any order a court may make under that section; and (e) the operation of that section will be taken to be modified to such extent as may be necessary as to afford a witness in an inquiry under this Part the same protections and arrangements they would have had they been a witness in a trial or other proceedings to which that section applies. (2) To avoid doubt, section 13(5) of the Evidence Act 1929 applies to an inquiry under this Part. (3) However, a requirement under section 13 of the Evidence Act 1929 that only applies to criminal trials will be taken not to apply in relation to an inquiry under this Part. 8—Insertion of sections 24A and 24B After section 24 insert: 24A—Actions to be taken by panel before questioning witness etc A judicial conduct panel must, before asking questions of a witness appearing before an inquiry under this Part, or requiring a witness to produce a document or other record— (a) inform the witness orally and in writing of their rights and obligations as a witness unless— (i) the witness is legally represented at the inquiry; or (ii) the witness informs the panel that, prior to the hearing a legal practitioner has explained their rights and obligations; and (b) inform the legal representative of the witness at the hearing (if any) of any requirements under this Act relating to publication, confidentiality and non‑disclosure of information and evidence. 24B—Examination etc of complainant and witnesses (1) Without limiting any other provision of this Act, but subject to subsection (2), a complainant or witness appearing before an inquiry under this Part may be examined, cross examined or re‑examined (as the case requires)— (a) by counsel assisting the inquiry; or (b) by the legal representative of the judicial officer to whom the inquiry relates; or (c) by any other person granted permission to do so by the judicial conduct panel. (2) A judicial officer to whom an inquiry relates cannot personally cross‑examine a complainant or witness appearing before the inquiry, and, if the judicial officer is not legally represented in the inquiry, cross‑examination of a complainant or witness must be undertaken— (i) by the judicial officer submitting to the judicial conduct panel, in the manner required by the judicial conduct panel, the questions the judicial officer proposes the witness be asked in cross‑examination and the judicial conduct panel (or counsel assisting the inquiry) asking the witness those of the questions submitted that are determined by the judicial conduct panel to be allowable in cross‑examination; or (ii) as otherwise directed by the judicial conduct panel. 9—Amendment of section 30—Immunity from liability Section 30(1)—delete "or the members of a judicial conduct panel" and substitute: , the members of a judicial conduct panel or counsel appointed to assist an inquiry