Division 3The Conduct
Division
22Constitution of Conduct
Division
(1)
The Commission shall appoint a panel of 3 persons
to be members of the Conduct Division for the purpose of exercising the
functions of the Division in relation to a complaint referred to the
Division.
(2)
Of the panel of 3 persons so appointed:
(a)
2 are to be judicial officers (but one may be a
retired judicial officer), and
(b)
one is to be a community representative, being a
person of high standing in the community nominated by Parliament in accordance
with Schedule 2A.
(3)
One of the judicial officers shall be appointed
by the Commission as Chairperson of the Conduct
Division.
(4)
It does not matter that any or all of the members
of the Conduct Division are not members of the
Commission.
(5)
More than one panel may be constituted, and sit,
at any time to deal with different complaints.
(6)
One panel may deal with 2 or more complaints, if
the Commission considers it appropriate in the
circumstances.
s 22: Am 2007 No 37,
Sch 1 [1].
23Examination of complaint by
Conduct Division
(1)
The Conduct Division shall conduct an examination
of a complaint referred to it.
(2)
In conducting the examination, the Conduct
Division may initiate such investigations into the subject-matter of the
complaint as it thinks appropriate.
(3)
The examination or investigations shall, as far
as practicable, take place in private.
24Hearings by Conduct
Division
(1)
The Conduct Division may hold hearings in
connection with the complaint.
(2)
A hearing may be held in public or in private, as
the Conduct Division may determine.
(3), (4)
(5)
If a hearing or part of a hearing is to take
place in private, the Conduct Division may give directions as to the persons
who may be present.
(6)
At a hearing:
(a)
the judicial officer complained about may be
represented by an Australian legal practitioner, and
(b)
if, by reason of the existence of special
circumstances, the Conduct Division consents to any other person being
represented by an Australian legal practitioner—the person may be so
represented.
(7)
At a hearing:
(a)
counsel assisting the Conduct
Division,
(b)
any person authorised by the Division to appear
before it at the hearing, or
(c)
any Australian legal practitioner representing a
person at the hearing pursuant to subsection (6),
may, so far as the Division thinks appropriate, examine
or cross-examine any witness on any matter that the Division considers
relevant.
s 24: Am 2005 No 98,
Sch 3.35 [2] [3]; 2006 No 34, Sch 1 [11].
25Powers of Conduct Division
concerning evidence
(1)
For the purposes of a hearing in connection with
a complaint:
(a)
the Conduct Division and the Chairperson have the
functions, protections and immunities conferred by the Royal
Commissions Act 1923 on commissioners and the chairman of
a commission appointed under that Act, and
(b)
that Act, with any necessary adaptations, applies
to any witness summoned by or appearing before the Division in the same way as
it applies to a witness summoned by or appearing before a commissioner under
that Act.
(2)
Subsection (1) applies to and in respect of the
Conduct Division and the Chairperson whether or not the Chairperson is a Judge
of the Supreme Court.
(3)
For the purposes of subsection (1), a reference
in that subsection to the Royal Commissions Act
1923 does not include a reference to section 13, 15 (1) or
17 (4) of that Act.
(4)
s 25: Am 2006 No 34,
Sch 2 [2] [3].
26Dismissal of complaint by
Conduct Division
(1)
The Conduct Division shall dismiss a complaint to
the extent that the Division is of the opinion that:
(a)
the complaint should be dismissed on any of the
grounds on which the Commission may summarily dismiss complaints,
or
(b)
the complaint has not been
substantiated.
(2)
If the Conduct Division dismisses a complaint it
must give a report to the Commission setting out the Division’s
conclusions.
(3)
The Commission must give a copy of the report to
the judicial officer concerned.
(4)
The Commission may give a copy of the report (or
a summary of the report) to the complainant unless the Conduct Division has
notified the Commission in writing that this should not
occur.
s 26: Am 2014 No 14,
Sch 3.3 [1].
27
s 27: Rep 2006 No 34,
Sch 2 [4].
28Substantiation of
complaint
(1)
If the Conduct Division decides that a complaint
is wholly or partly substantiated:
(a)
it may form an opinion that the matter could
justify parliamentary consideration of the removal of the judicial officer
complained about from office, or
(b)
it may form an opinion that the matter does not
justify such consideration and should therefore be referred back to the
relevant head of jurisdiction.
(2)
If it forms an opinion referred to in subsection
(1) (b), the Conduct Division must send a report to the relevant head of
jurisdiction setting out the Division’s
conclusions.
(3)
A report under subsection (2) may include
recommendations as to what steps might be taken to deal with the
complaint.
(4)
A copy of a report under subsection (2) must also
be given to the Commission.
(5)
The Commission must give a copy of the report to
the judicial officer concerned.
(6)
The Commission may give a copy of the report (or
a summary of the report) to the complainant unless the Conduct Division has
notified the Commission in writing that this should not
occur.
s 28: Subst 2006 No
34, Sch 1 [12]. Am 2014 No 14, Sch 3.3 [2].
29Reports to
Governor
(1)
If the Conduct Division decides that a complaint
is wholly or partly substantiated and forms an opinion that the matter could
justify parliamentary consideration of the removal of the judicial officer
from office, it must present to the Governor a report setting out the
Division’s findings of fact and that opinion.
(2)
(2A)
A copy of the report must be furnished forthwith
to the Minister.
(3)
The Minister shall lay the report or cause it to
be laid before both Houses of Parliament as soon as practicable after the
report is presented to the Governor.
(4)
The Minister may present the report to the Clerks
of both Houses of Parliament when Parliament is not sitting, and thereupon the
report shall for all purposes be deemed to have been laid before both Houses
of Parliament, but the Minister shall nevertheless lay the report or cause it
to be laid before both Houses of Parliament as soon as practicable after
Parliament resumes.
(5)
A report presented to the Clerk of a House of
Parliament may be printed by authority of the Clerk of the House and shall for
all purposes be deemed to be a document published by order or under the
authority of the House.
(6)
A copy of any report presented to the Governor
shall also be furnished forthwith to the Commission and, after it has been
laid before each House of Parliament, to the
complainant.
(7)
(8)
A copy of any report referred to in this section
shall also be furnished to the judicial officer
concerned.
s 29: Am 2006 No 34,
Schs 1 [13] [14], 2 [5] [6].