A Judicial Officer v The Judicial Conduct Commissioner and the Judicial Conduct Panel

[2022] SASCA 42

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Civil)

A JUDICIAL OFFICER v THE JUDICIAL CONDUCT COMMISSIONER AND THE JUDICIAL CONDUCT PANEL

[2022] SASCA 42

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice Lovell and the Honourable Justice Doyle)

5 May 2022

MAGISTRATES - GENERALLY - DISCIPLINARY AND RELATED MATTERS - ACTIONS AGAINST MAGISTRATES

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - PROCEDURAL FAIRNESS - GENERALLY

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - JURISDICTIONAL MATTERS

STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION

CONSTITUTIONAL LAW - OPERATION AND EFFECT OF THE COMMONWEALTH CONSTITUTION - GENERAL MATTERS - NATURE AND SCOPE OF COMMONWEALTH POWERS - SEPARATION OF POWERS

The applicant is a judicial officer, serving as a magistrate.  By letters dated 7 May and 31 May 2021, the judicial officer was notified by the Judicial Conduct Commissioner (the Commissioner) of eight complaints made against him.  Following a preliminary investigation, the Commissioner reported to the Attorney-General that an inquiry into his conduct was necessary and recommended the appointment of a judicial conduct panel to inquire into and report on the complaints.  On 24 June 2021, the Attorney-General constituted a judicial conduct panel (the Panel) under the Judicial Conduct Commissioner Act 2015 (SA) (the Act). 

By Originating Application for Judicial Review filed on 15 November 2021, the judicial officer sought review of the recommendation made by the Commissioner to the Attorney-General, and of the subsequent decisions made by the Panel to inquire into the matters referred to it and to permit a legal representative of a witness to appear. 

On 23 November 2021, the applicant issued a notice pursuant to s 78B of the Judiciary Act 1903 (Cth) raising constitutional issues regarding the validity and interpretation of the Act (the Kable challenge). 

Held (Livesey P, Lovell and Doyle JJA) dismissing the application for judicial review:

1.The judicial officer was given sufficient notice of the impugned complaints to enable meaningful participation in the preliminary examination.  The contention that there was no preliminary examination of complaint 8 by the Commissioner must be rejected.  Ground 1 is dismissed.

2.The Commissioner’s letter dated 10 June 2021 fairly summarised the “specific incident” and the other conduct comprising complaint 8.  The judicial officer’s complaint that there has been a denial of procedure fairness must be rejected.  The essential nature of the conduct was identified in a manner that fairly framed the scope of the referral by the Attorney and the inquiry by the Panel.  Ground 2 is dismissed.

3.The Panel’s decision to permit a limited right of appearance to counsel for witness A was not beyond jurisdiction.  It was open to the Panel to find that counsel for witness A was a person whose presence was reasonably required for the purposes of or in connection with the performance by the Panel of its functions.  Ground 3 is dismissed.

4.The issues raised by the judicial officer in his Kable challenge fail at the threshold. The case for the judicial officer depended on a construction of the Act which has been rejected and was contrary to the evidence.

Act of Settlement 1701 (UK) 12 & 13 Wm III c 2; Acts Interpretation Act 1915 (SA) s 22A; Children and Young People (Oversight and Advocacy Bodies) Act 2016 (SA) s 16; Colonial Leave of Absence Act 1782 (UK); Commonwealth Constitution s 72; Competition and Consumer Act 2010 (Cth) s 86(2); Constitution Act 1856 (SA) ss 30, 31; Constitution Act 1934 (SA) s 84; Constitution Act 1934 (SA) ss 74, 75; Courts Administration Act 1993 (SA) ss 27A, 27C; Independent Commission Against Corruption Act 2012 (SA); Judicial Commission Act 2020 (NT); Judicial Commission of Victoria Bill 2010 (Vic); Judicial Commissions Act 1994 (ACT); Judicial Conduct Commissioner Act 2015 (SA) ss 3, 4, 5, 6, 7, 11, 12, 13, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33; Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 (NZ); Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012 (Cth) s 20; Judicial Officers Act 1986 (NSW); Judiciary Act 1903 (Cth) ss 68(2), 78B; Legal Profession Practice Act 1958 (Vic) s 28; Legislation Interpretation Act 2021 (SA) s 55; Magistrates Court Act 1991 (SA); Maralinga Tjarutja Land Rights Act 1984 (SA) s 21; Migration Act 1958 (Cth) s 429; Ombudsman Act 1972 (SA) ss 13, 16, 19; Parliamentary Commission of Inquiry Act 1986 (Cth) s 5; Parliamentary Commission of Inquiry Act 1986 (Cth); Parliamentary Commission of Inquiry (Repeal) Act 1986 (Cth) s 6; Parliamentary Committees Act 1991 (SA); Public Service Act 1979 (NSW) s 85; Remuneration Act 1990 (SA) s 11; Royal Commissions Act 1917 (SA) ss 6, 13, 16, 16B; South Australian Local Government Grants Commission Act 1992 (SA) s 16; Supreme Court Act 1935 (SA) s 39; Uniform Civil Rules 2020 (SA) r 32.2, referred to.
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; Annetts v McCann (1990) 170 CLR 596; Arafura Seafood Products Pty Ltd v Landos [1988] FCA 340; Arthur Yates & Co Pty Ltd v The Vegetable Seeds Committee & Ors (1945) 72 CLR 37; Assistant Commissioner Michael James Condon v Pompano Pty Ltd (2013) 252 CLR 38; Attorney-General for the Northern Territory & Anor v Emmerson (2014) 253 CLR 393; Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; B, RD v Channel Seven Adelaide Pty Ltd (2008) 103 SASR 478; Baker v The Queen (2004) 223 CLR 513; Bannerman v Mildura Fruit Juices Pty Ltd (1984) 2 FCR 581; Barry v Queensland Nursing Council [2001] QDC 146; Bond v Australian Broadcasting Tribunal (No 2) (1988) 19 FCR 494; Bond v Sulan (1990) 26 FCR 580; Briginshaw v Briginshaw (1938) 60 CLR 336; Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41; Brown v The Queen (1986) 160 CLR 171; Bruce v Cole (1998) 45 NSWLR 163; Cabassi v Vila (1940) 64 CLR 130; Cheatle v The Queen (1993) 177 CLR 541; City of Enfield v Development Assessment Commission (2000) 199 CLR 135; Clyne v NSW Bar Association (1960) 104 CLR 186; Connell v National Companies and Securities Commission (1989) 14 ACLR 765; Cooper Brookes (Wollongong) Pty Ltd v The Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 297; Copartnership Farms v Harvey-Smith [1918] 2 KB 405; Corporate Affairs Commission (SA) v Australian Central Credit Union (1985) 157 CLR 201; Dainford Ltd v ICAC (1990) 20 ALD 207; Dawkins v Lord Rokeby (1873) LR 8 QB 255; Duncan v Independent Commission Against Corruption (2015) 256 CLR 83; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Ell v Alberta (2003) 1 SCR 857; Esso Australia Resources Ltd & Ors v Plowman & Ors (1995) 183 CLR 10; Etherton v Public Service Board [1983] 3 NSWLR 297; Fingleton v Christian Ivanoff Pty Ltd (1976) 14 SASR 530; Forge v Australian Securities and Investments Commission (2006) 228 CLR 45; Forrest & Forrest Pty Ltd v Wilson (2017) 262 CLR 510; Gardiner v Land Agents Board (1976) 12 SASR 458; Gribbles Pathology (Vic) Pty Ltd v Cassidy (2002) 122 FCR 78; Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2007) 33 WAR 245; Hamilton v Oades (1989) 166 CLR 486; Hammond v The Commonwealth (1982) 152 CLR 188; Hargreaves v Bretherton [1959] 1 QB 45; In the matter of Lisa Jane Barrett (No 2) [2021] SASCFC 38; Jones v Director of Public Prosecutions (UK) [1962] AC 635; Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; Karakatsanis v Racing Victoria Ltd (2013) 42 VR 176; Karounos v Corporate Affairs Commission (SA) (1989) 50 SASR 484; K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501; Kiao & Ors v West & Anor (1985) 159 CLR 550; Kirk v Industrial Court (NSW) (2010) 239 CLR 531; Knight v Victoria (2017) 261 CLR 306; Kronen v Commercial Motor Industries Pty Ltd (2018) 264 FCR 408; Kuczborski v Queensland (2014) 254 CLR 51; Kyriackou v Law Institute of Victoria Ltd (2014) 45 VR 540; Lambert v Weichelt (1954) 28 ALJR 282; Lee v Evans (1964) 112 CLR 276; Lee v NSW Crime Commission (2013) 251 CLR 196; Mann v O’Neill (1997) 191 CLR 204; Marrinan v Vibart [1963] 1 QB 528; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 (2021) 95 ALJR 292; Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475; Moore v Lambeth County Court Registrar [1969] 1 WLR 141; More v Weaver [1928] 2 KB 520; Moss v Brown [1979] 1 NSWLR 114; MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441; National Companies & Securities Commission v News Corp Ltd (1984) 156 CLR 296; North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569; North Australian Aboriginal Legal Aid Service v Bradley (2004) 218 CLR 146; O'Connor v Waldron [1935] AC 76; Owners of “Shin Kobe Maru” v Empire Shipping (1994) 181 CLR 404; Plaintiff M61/2020E v Commonwealth (2010) 243 CLR 319; Pollentine & Anor v Bleijie & Ors (2014) 253 CLR 629; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; PT Bayan v BCBC Singapore (2015) 258 CLR 1; Public Service Association of South Australia Incorporated v Industrial Relations Commission of South Australia & Anor (2012) 249 CLR 398; Question Of Law Reserved (No 1 of 2018) (2018) 275 A Crim R 400; R (on the application of Bourgass) v Secretary of State for Justice [2016] AC 384; R v Moss; Ex parte Mancini (1982) 29 SASR 385; R v Solicitors’ Disciplinary Tribunal; Ex parte L (a solicitor) [1988] VR 757; Re JN Taylor Holdings Limited (In Liq) [2007] SASC 193; Re Minister for Immigration and Multicultural Affairs; ex parte S20/2002 (2003) 198 ALR 59; Re Question of Law Reserved (No. 1 of 2019) (2019) 135 SASR 226; Revis v Smith (1856) 18 CB 126; Romeo v Asher (1991) 29 FCR 343; Rondel v Worsley [1969] 1 AC 191; Royal Aquarium and Summer and Winter Garden Society v Parkinson [1892] 1 QB 431; Russell v Duke of Norfolk [1949] 1 All ER 109; S v The Queen (1989) 168 CLR 266; Seaman v Netherclift (1876) 2 CPO 53; Shaw Stockbroking Ltd v Australian Stock Exchange (1998) 16 ACLC 827; Smith v New South Wales Bar Association (1992) 176 CLR 256; Sorby v Commonwealth (1983) 152 CLR 281; South Australia v Totani (2010) 242 CLR 1; SZAYW v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 230 CLR 486; Tajjour v New South Wales (2014) 254 CLR 508; TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd (2014) 232 FCR 361; The Queen v The Australian Broadcasting Tribunal & Ors; Ex parte Hardiman (1980) 144 CLR 13; Traill v McRae (2002) 122 FCR 349; Trapp v Mackie [1979] 1 All ER 489; Valente v R (1985) 2 SCR 673; Wainohu v New South Wales (2011) 243 CLR 181; Watson v M'Ewan [1905] AC 480; Wentworth v NSW Bar Association (1992) 176 CLR 239; Willis v Sir George Gipps (1846) 13 ER 536; Wilson v Minister for Aboriginal & Torres Strait Islander Affairs (1996) 189 CLR 1, considered.

A JUDICIAL OFFICER v THE JUDICIAL CONDUCT COMMISSIONER AND THE JUDICIAL CONDUCT PANEL
[2022] SASCA 42

Court of Appeal – Civil Application for Review – Judicial Review

LIVESEY P:

Introduction

1. The applicant is a judicial officer, serving as a magistrate. 

2. The applicant challenges a number of decisions made by the Judicial Conduct Commissioner (the Commissioner) and the judicial conduct panel.  He seeks orders in the nature of certiorari or prohibition, together with declarations, effectively putting a stop to the inquiry being conducted by the Panel into allegations that he engaged in sexual and other misconduct.  The application for judicial review was heard by the Court of Appeal.[1]

   [1] See s 29(1) of the Judicial Conduct Commissioner Act 2015 (SA).

3. For the reasons that follow, none of the grounds have been made out, the Kable challenge fails[2]  and the application for judicial review must be dismissed.

   [2]     Kable v Director of Public Prosecutions(NSW) (1996) 189 CLR 51 (Kable).

   Introduction

   Background facts

   The preliminary investigation

   The recommendation and referral

   Constitution of the Judicial Conduct Panel

   The 9 August 2021 directions hearing

   Correspondence with the Commissioner following the 9 August 2021 directions hearing

   Submissions concerning the additional matters in complaint 8

   The private hearing decision

   The application for judicial review

   Hearings before the Court of Appeal and notice pursuant to s 78B of the Judiciary Act 1903 (Cth)

   The Judicial Conduct Commissioner Act 2015 (SA) – the debate

   The Judicial Conduct Commissioner Act 2015 (SA) – the Second Reading

   The Judicial Conduct Commissioner Act 2015 (SA) – relevant provisions

   The applicant’s grounds for judicial review

   Ground 1: The recommendations by the Commissioner dated 10 June 2021 are invalid

   Determination of Ground 1

   Ground 2: The ruling of the Panel on 27 October 2021 to inquire was wrong in law

   Determination of Ground 2

   Ground 3: The ruling of the Panel on 9 November 2021 to permit a witness to be legally represented was wrong in law

   Determination of ground 3

   The Kable challenge

   Determination of the Kable challenge

   Continued restraints on access and confidentiality?

   Conclusion

   Background facts

4. Pursuant to s 29(1) of the Judicial Conduct Commissioner Act 2015 (SA) (the Act) any application for judicial review of a decision under that Act must be made to the Court of Appeal.

5. The matter was called over before the Court of Appeal during November with a view to convening a hearing just before Christmas 2021.  At these callovers a “party access” order was made,[3] the representation of the parties was resolved, and the material to be put before the Court of Appeal was agreed. 

   [3]     Pursuant to r 32.2 of the Uniform Civil Rules 2020 (SA).

6. In support of the application for judicial review, the applicant provided a Statement of Facts, Issues and Contentions dated 15 November 2021, supported by an affidavit from the applicant’s instructing solicitor exhibiting the documents regarded as relevant to the application.

7. For the purposes of the application the parties effectively treated the statement of facts and the affidavit as agreed.

8. In order to understand the applicant’s contentions, it is first necessary to set out the factual background.

   The preliminary investigation

9. On 7 May 2021, the Commissioner notified the applicant of a series of complaints which were listed as complaints numbered 1 to 7. The applicant was invited to respond to what was described as a “preliminary investigation” within the meaning of the Act.

10. It is not necessary to address the substance of complaints 1 to 7 because they did not feature in the application for judicial review.

11. By a further letter dated 31 May 2021, the Commissioner notified the applicant of a further complaint, complaint numbered 8, which was investigated on the Commissioner’s “own initiative”.[4]  It concerned an alleged incident involving [REDACTED] and the applicant [REDACTED] in a Court building on 18 July 2014 (the specific incident).  The substance of the complaint was that the applicant [REDACTED].  The applicant was told that the incident was witnessed by Ms B.

    [4] Pursuant to s 12(8) of the Act.

12. The Commissioner advised that the witness reported the incident and made notes of it.  It was alleged that [REDACTED] later told the witness that the applicant “often treated her in that way and it made her uncomfortable”.  She “claimed to have raised it with [the applicant] but it made no difference”.  Again, the Commissioner sought a response. 

13. On 3 June 2021, the applicant’s solicitor responded to the complaints, effectively denying all allegations of misconduct. 

    The recommendation and referral

14. On 10 June 2021, the Commissioner reported to the Attorney-General, advising that she had conducted a preliminary examination “of the complaints” and that “an inquiry into the conduct is necessary and justified, and that if established, the conduct may warrant consideration of removal of [the applicant] by the Governor”. 

15. The Commissioner recommended the appointment of a judicial conduct panel to “inquire into and report” on the eight complaints concerning the conduct of the applicant. 

16. Complaint 8 was addressed in the 10 June 2021 letter by naming [REDACTED] Ms C and confining the time period to 2012 to 2020, adding that [REDACTED]. 

17. The Commissioner explained that she put the “essence of all the allegations”, meaning complaints numbered 1 to 8, to the applicant who either denied the allegations or asserted that his conduct “was, in effect, innocuous”.

18. The applicant’s solicitor and the Chief Magistrate, the applicant’s head of jurisdiction, were informed of the Commissioner’s recommendations by separate letters dated 10 June 2021. 

19. As will be seen, to the extent that it was suggested in the letter dated 31 May 2021 that the judicial officer often treated the complainant in a particular way, this was referred to by the applicant as “the conclusionary allegation”.  To the extent that details regarding complaint 8 in the 10 June 2021 letter to the Attorney-General were not included in the 31 May 2021 letter to the applicant, these were referred to as “the omitted allegations”.

    Constitution of the Judicial Conduct Panel

20. On 24 June 2021, the Attorney-General constituted a judicial conduct panel comprising the Hon Justice Kelly, then the President of the Court of Appeal, the Hon David Bleby QC, a retired Supreme Court Judge, and Dr Christopher Moy (the Panel). 

21. On 9 July 2021, the applicant was informed by letter from counsel assisting the Panel that the Panel had been constituted and disclosure was made of witness statements relating to complaints numbered 1 to 8.  These included a statement provided by Ms C dated 7 June 2021, together with the earlier statement of the witness, Ms B, dated 28 May 2021.  A request was made that the applicant respond by 26 July 2021 as to whether any parts of the statements were disputed.  A directions hearing was proposed for 9 August 2021. 

22. By a further letter from counsel assisting dated 16 July 2021, the view of the Panel was conveyed that it proposed to permit complainants to be legally represented “at any hearing they are required or invited to attend” and that it would give consideration to whether complainants could be present, in person or through legal representatives if and when the applicant gave evidence.  The applicant was told that some of the complainants may require that a Witness Assistance Officer be present when they give evidence and that submissions would be made about that at the directions hearing on 9 August 2021.

23. The applicant was advised that the Chief Justice had informed the Panel that he had not approved any guidelines pursuant to s 23(3)(c) of the Act regarding the manner in which the Panel must call meetings and conduct business at those meetings.

24. On 4 August 2021, counsel assisting the Panel sent the applicant’s solicitors a letter which enclosed, amongst other letters, the letter from the Commissioner to the Attorney-General dated 10 June 2021.

    The 9 August 2021 directions hearing

25. The Panel conducted a directions hearing on 9 August 2021 at which, amongst other matters, counsel for the applicant raised issues concerning the “matters” the subject of inquiry and suggested that there had not been any explicit referral of those matters to the Panel by the Attorney-General as s 23 of the Act required.

26. Counsel for the applicant also raised the difference between the issues the subject of the preliminary examination, the notification of complaint 8 to the applicant (as set out in the letter dated 31 May 2021) and the recommendation made in relation to complaint 8 (as set out in the letter to the Attorney-General dated 10 June 2021), indicating an intention to write to the Commissioner about that. The submission was that because not all of the detail in the 10 June letter was contained in the 31 May letter, there was “either or both of a failure to notify in accordance with the Act or a failure of procedural fairness”. It was submitted that because the Commissioner had treated all complaints as one complaint “there has been a failure in relation to all”.[5]

    [5]     Transcript of the Panel hearing dated 9 August 2021, p 20.

1. Counsel for the applicant opposed the proposed course of allowing witnesses to be legally represented.  No ruling was made about that issue. 

   Correspondence with the Commissioner following the 9 August 2021 directions hearing

2. On the day of the directions hearing, correspondence was sent by the applicant to the Commissioner addressing the scope of her recommendation and of the preliminary examination. 

3. On 12 August 2021, the Commissioner replied. First, she explained that she collected the complaints together as a matter of convenience so as to “consider their combined force”. The Commissioner reiterated the point made in her 10 June 2021 letter, that she had not thereby denied herself “the power to make different decisions with respect to disposition of individual complaints”, emphasising that no reference to s 13(4) of the Act was made.

4. Secondly, as for complaint 8, the Commissioner explained that her letter dated 31 May 2021 was based on information from the witness Ms B, and that by the time of the 10 June 2021 letter she had received further information.  The Commissioner indicated that both letters addressed the specific incident, and both referred to “other occasions … of a similar ilk”. 

5. The Commissioner expressed the view that she was “not required by s 12(3) of the Act to provide more detail” because she was “undertaking only a preliminary investigation; there was no final determination of [the applicant’s] rights or interests” and, in addition, she did “not intend to undertake a fresh preliminary examination of complaint 8”.

6. Ultimately, on 20 August 2021, the Attorney-General made an instrument explicitly referring to the Panel all of the matters the subject of the recommendation made by the Commissioner in her letter to the Attorney dated 10 June 2021.

   Submissions concerning the additional matters in complaint 8

7. On 13 September 2021, the applicant contended before the Panel that it lacked jurisdiction to entertain the Attorney-General’s referral where “so much” of the Commissioner’s recommendation concerning complaint 8 was not notified to the applicant or made the subject of a preliminary examination.

8. Counsel explained the basis for that argument by reference to the scope of the power contained in s 23(1) of the Act. Counsel contended that it was necessary to identify “conduct” that could be made the subject of inquiry. It was submitted that this requirement was not satisfied concerning the allegation about the applicant “often” treating Ms C in a particular way, together with the failure to specify the allegations concerning the period between 2012 and 2020. Counsel emphasised the absence of notice regarding the essential facts underlying these allegations which, it was submitted, was required by the principles of procedural fairness (and reference was made to s 23(3)(b) of the Act). These oral submissions were supported by written submissions.

9. Counsel assisting the Panel subsequently provided written submissions dated 30 September 2021 and the Applicant made written submissions in reply dated 18 October 2021. 

10. The Panel gave written reasons for its determination on 27 October 2021 that it would inquire into all of the matters the subject of the referral, including all of the allegations made by Ms C. 

11. It will be necessary to return to the reasons given for the ruling made on 27 October 2021.

    The private hearing decision

12. A further directions hearing was listed for 9 November 2021.  Before that hearing, correspondence was sent by the solicitor for a witness who had made a complaint to the Commissioner which had been included in the Commissioner’s recommendation.  In that correspondence, it was indicated that counsel for the witness would seek, if permitted, to take objections during cross-examination, to re-examine the witness if necessary or appropriate and to make submissions to the Panel regarding such issues as may arise in relation to the witness’s evidence.  These included submissions on matters of evidence or procedural fairness, as well as to the findings that might be made about the witness’s evidence. 

13. As will be seen, the Panel did not rule on all of these contentions.

14. On 9 November 2021, following the receipt of written submissions from the applicant, the Panel heard oral argument on whether the witness was entitled, by leave, to be represented.  Counsel assisting and counsel for the witness contended in favour of that entitlement, whereas counsel for the applicant opposed it. 

15. Following argument, the Panel determined to permit the representation of the witness during her evidence and otherwise deferred for later consideration any entitlement of that witness to later participate in the hearing process.  Although no reasons were published, the Panel indicated that it accepted the submissions of counsel assisting the Panel. 

    The application for judicial review

16. Shortly after the last-mentioned hearing, the applicant filed an application for judicial review on 15 November 2021. 

17. By that application, the following recommendations by the Commissioner dated 10 June 2021 and decisions by the Panel dated 27 October and 9 November 2021 were challenged:

    1.The recommendations made by the Judicial Conduct Commissioner to the Attorney-General dated 10 June 2021.

    2.The decision of the Judicial Conduct Panel dated 27 October 2021 to inquire into the conduct of Referral from the Attorney-General entirely, and further, to inquire into the omitted allegations and conclusionary allegations.

    3.The decision of the Judicial Conduct Panel dated 9 November 2021 to permit a witness to be legally represented, and to defer its consideration of whether it would permit that counsel to take further part in the proceedings.

18. The applicant sought the following orders:

    1.An order in the nature of certiorari quashing the recommendations of the Judicial Conduct Commissioner dated 10 June 2021 entirely, or otherwise in relation to complaint 8.

    2.An order in the nature of prohibition prohibiting further inquiry by the Judicial Conduct Panel into the Referral entirely, or otherwise in relation to the omitted allegations and conclusionary allegations purportedly part of complaint 8.

    3.A declaration that:

    a.     The recommendations made by the Judicial Conduct Commissioner dated 10 June 2021 are invalid by reason of:

    i.the failure to notify the Applicant of the omitted allegations contrary to s12(3) of the JCC Act, or to conduct a preliminary examination into those allegations contrary to s13 of the JCC Act; and

    ii.the failure to accord procedural fairness to the Applicant contrary to s21 of the JCC Act;

    b.    The proposed inquiry into the conduct the subject of the Referral is wholly invalid, by reason that it is based on a Referral which is invalid or invalid [sic], alternatively, is invalid to the extent it is a purported inquiry into conclusionary or omitted allegations;

    c.     [The] witnesses before the Judicial Conduct Panel are not entitled to be legally represented, or to participate in the Inquiry process otherwise than as witnesses.

    Hearings before the Court of Appeal and notice pursuant to s 78B of the Judiciary Act 1903 (Cth)

19. During the course of the callovers earlier mentioned, the Court was informed that the Commissioner was no longer the Hon Ann Vanstone QC.  Following Commissioner Vanstone’s resignation, the Hon Bruce Debelle AO QC was appointed on an interim basis.  The Commissioner would be represented by the Solicitor-General who would, in addition, present argument in support of the decisions made by the Panel. 

20. Counsel assisting the Panel appeared, but took no active role.[6] 

    [6]     This was said to be in accord with the “Hardiman principle”, see The Queen v The Australian Broadcasting Tribunal & Ors; Ex parte Hardiman (1980) 144 CLR 13, 35 (Gibbs, Stephen, Mason, Aickin and Wilson JJ).

21. In addition, the applicant sought an interim “party access” order.  This interim order was not opposed.[7]  The purpose of the order was to ensure the confidentiality of the identities of the applicant and the various complainants, together with confidentiality concerning the allegations made by the various complainants.  In support of this approach, the applicant sought the closure of the Court during those parts of the hearing before the Court of Appeal at which details of the allegations were aired.  As it turned out, counsel for witness A did not oppose that course. 

    [7]     Made pursuant to r 32.2 of the Uniform Civil Rules 2020 (SA).

22. It will be necessary to return to the ongoing operation of any party access orders.

23. The applicant issued a notice dated 23 November 2021 pursuant to s 78B of the Judiciary Act 1903 (Cth) raising what it was contended were constitutional issues, effectively mounting what was described as a “Kable challenge”.[8]  That notice is in the following terms:

    [8]     Kable v Director of Public Prosecutions(NSW) (1996) 189 CLR 51.

    1.The Applicant for Judicial Review in Action No. CIV-21-01269, moves the Appeal Division of the Supreme Court of South Australia for orders in the nature of Certiorari and Prohibition, and for declaratory relief, in respect of:

    (a)     decisions made by the Judicial Conduct Commissioner (“JCC”) pursuant to the Judicial Conduct Commissioner Act, 2015 (SA) (the JCC Act) and;

    (b)     decisions made by a Judicial Conduct Panel (“JCP”) appointed by the Attorney-General pursuant to s.21 of the JCC Act, to inquire into matters concerning the conduct of the applicant, a judicial officer.

    2.The proceedings are subject to an interim party access order pursuant to r 32.2 of the Uniform Civil Rules, 2020 (SA), which restricts to the parties only the availability of the Originating Application and all supporting documentation including interlocutory applications and material.

    3.Out of an abundance of caution, the information provided in this s78B Notice is, as far as possible, restricted so as to preserve the anonymity of the parties, and the confidentiality of the information. To that end, the applicant requests that all recipients of this Notice accept a self-imposed obligation of confidentiality except to the extent necessary to consider the Notice and to obtain instructions for a Response.

    4.With these restrictions in mind, but in order to provide the information required by s.78B of the Judiciary Act 1903, there is Attachment to this Notice containing an extract from the Originating Application for Review setting out the Issues (Part 2), Grounds of Review (Part 3) and the Orders sought (Part 4).  It has been redacted in part.

    5.The nature of matter arising under the Constitution or involving its interpretation is as follows:

    5.1. to the extent that s 24 of the JCC Act is to be construed as deeming a Judicial Conduct Panel to be a Royal Commission acting under, and pursuant to, the Royal Commissions Act 1917 (SA), (subject only to such qualifications and modifications as are required by the JCC Act, either expressly, or by necessary implication), the section is invalid as inconsistent with the essential judicial independence of –

    (a)the Court of which the applicant is a member, and

    (b)every other State Court that may exercise the judicial power of the Commonwealth pursuant to investment by laws made by the Commonwealth Parliament.

    5.2. to the extent that s 23(1) and s 23(3)(a) of the JCC Act, are to be construed as authorising an inquiry into matters concerning the conduct of a judicial officer despite the absence of a sufficient notice to the judicial officer of the essential facts alleged to constitute that conduct, the section is invalid as inconsistent with the essential judicial independence of –

    (a)the Court of which the applicant is a member, and

    (b)every other State Court that may exercise the judicial power of the Commonwealth pursuant to investment by laws made by the Commonwealth Parliament.

24. Before addressing the contentions made to the Court of Appeal, it is first helpful to outline some of the debate that surrounded the implementation of the Act, together with the provisions of the Act relevant to this application.

    The Judicial Conduct Commissioner Act 2015 (SA) – the debate

25. The South Australian Bill was preceded by considerable debate concerning the necessity for a formal judicial complaints handling process.[9]  This debate intensified after the Chief Justice of the High Court of Australia, the Hon Susan Kiefel AC, announced the outcome of an independent inquiry into allegations by former associates regarding alleged sexual harassment by the Hon Dyson Heydon AC QC.[10] 

    [9]     See, eg, John Doyle ‘Accountability: Parliament, the Executive and the Judiciary’ (Conference Paper, AIAL Forum, 18-19 June 1998); HP Lee, Judiciaries in Comparative Perspective (Cambridge University Press, 2011) ch 2 p 41; HP Lee and Enid Campbell, The Australian Judiciary (Cambridge University Press, 2^nd ed, 2012) 150.  For later consideration of these issues, see Ronald Sackville ‘Judicial ethics and judicial misbehaviour: Two sides of the one coin?’ (2015) 89 Australian Law Journal 244; Gabrielle Appleby, Suzanne Le Mire, Andrew Lynch and Brian Opeskin, ‘Contemporary challenges facing the Australian judiciary: An empirical interruption’ (2019) 42(2) Melbourne University Law Review 299, 357.

    [10]   François Kunc, ‘Current Issues – Reflecting on Recent Events’ (2020) 94 Australian Law Journal 651, 651.

26. In the course of this long-running debate, whether “judicial accountability” interferes with “judicial independence” has been closely considered.  The debate generally reflects a growing expectation that there should be greater accountability.  As the Hon Robert Nicholson AO explained in 1993:[11]

    It is probably fair to say that at the present time it is an expectation of the citizen that all aspects of government ought to be highly accountable.  It is probably also fair conjecture that the same citizen would characterise the judicial branch of government as in need of greater accountability.

    [11]   RD Nicholson, ‘Judicial Independence and Accountability: Can They Co-exist?’ (1993) 67 Australian Law Journal 404, 413.

27. The proposition that the judiciary is not accountable has been widely rejected.[12]  The Hon John Doyle AC QC described this view as “misconceived”.  This misconception “stems from the imprecision of the term accountability.  In truth accountability is a concept the content of which varies according to the context in which it is being considered”.[13] 

    [12]   See, eg, RD Nicholson, ‘Judicial Independence and Accountability: Can They Co-exist?’ (1993) 67 Australian Law Journal 404, 413; John Doyle ‘Accountability: Parliament, the Executive and the Judiciary’ (Conference Paper, AIAL Forum, 18-19 June 1998); James Spigelman, ‘Seen to be done: The principle of open justice – Part II’ (2000) 74 Australian Law Journal 378, 378.

    [13]   John Doyle ‘Accountability: Parliament, the Executive and the Judiciary’ (Conference Paper, AIAL Forum, 18-19 June 1998) 21-22.

28. In the context of judicial decision-making, John Doyle explained that accountability is significant when considering that Judges must “transact their business” in public, provide full reasons for all decisions they make and accept individual responsibility for their decisions.  Most judicial decisions are subject to a full review of their legality and merits, as well as public comment.  Whilst he acknowledged that a judge’s security of tenure distinguishes the judiciary from other branches of government, he highlighted that “judicial decision-making must be independent of the parties, of the executive government and of external influences generally, and seen to be independent”.[14] 

    [14]   John Doyle ‘Accountability: Parliament, the Executive and the Judiciary’ (Conference Paper, AIAL Forum, 18-19 June 1998) 10-12.

29. One concern has been whether judicial accountability mechanisms may undermine confidence in judicial independence.[15]  Whilst “judicial independence” is prized, it is necessary to identify with some precision what that concept entails.  The Hon Len King AC QC described “the freedom of the judge from pressure or influence in the making of his decisions in his courtroom… [as] the undoubted kernel of judicial independence”.[16]

    [15]   See, eg, Irving R Kaufman, ‘Chilling Judicial Independence’ (1979) 88 Yale Law Journal 681, 715–16; Enid Campbell, ‘Suspension of Judges from Office’ (1999) 18 Australian Bar Review 63, 73–4.

    [16]   Len King, ‘Minimum Standards of Judicial Independence’ (1984) 58 Australian Law Journal 340, 341.

30. The Hon Marilyn Warren AC QC characterised judicial independence as the core principle that “the decider of the case [be] free from influence”:[17]

    This means, free from influence from the government of the day, the parties before the court, the media, other judges’ opinions and, even, the predispositions and predilections of the individual judge or judges deciding the case before the court.

    [17]   Marilyn Warren, ‘Does judicial independence matter?’ (2011) 85 Australian Law Journal 481, 482.

31. Judicial independence has also been explained as freedom from interference with “a judge’s capacity impartially and efficiently to hear and determine according to law all disputes presented for judgment”.[18]

    [18]   François Kunc, ‘Current Issues – Thinking about Judicial Independence’ (2020) 94 Australian Law Journal 651, 656.

32. The essence of “judicial independence” concerns the ability of judges to decide cases impartially, in accordance with the law.[19]  That independence is “traditionally, and properly, protected by strong constitutional restraints on how judges may be removed and requirements that their renumeration may not be arbitrarily reduced”.[20]  However, it is important not to cast the principle of judicial independence “too widely”.[21]  As Justice Kunc has explained, extra-curially:[22] 

    … there is much about the selection, functioning, education, management and even, in some respects, disciplining of judges that has nothing to do with judicial independence.

    [19]   RE McGarvie, ‘The ways available to the judicial arm of government to preserve judicial independence’ (1992) 1 Journal of Judicial Administration 236, 237.

    [20]   François Kunc, ‘Current issues – Thinking about Judicial Independence’ (2020) 94 Australian Law Journal 651, 656.

    [21]   RE McGarvie, ‘The ways available to the judicial arm of government to preserve judicial independence’ (1992) 1 Journal of Judicial Administration 236, 237.

    [22]   François Kunc, ‘Current issues – Thinking about Judicial Independence’ (2020) 94 Australian Law Journal 651, 656.

33. The concept of judicial independence must not therefore be confused with judicial accountability, which encompasses “legal, public and informal (or professional) accountability”.[23] 

    [23]   RD Nicholson, ‘Judicial Independence and Accountability: Can They Co-exist?’ 67 Australian Law Journal 404, 413, citing S Shetreet, ‘Judicial Accountability: A Comparative Analysis of the Models and Recent Trends’ (1986) International Legal Practitioner 38; RE McGarvie, ‘The Operation of the New Proposals in Australia’ in The Accountability of the Australian Judiciary: Procedures for Dealing with Complaints Concerning Judicial Officers (Australian Institute of Judicial Administration, 1989) 13, 16-18.

34. While historically a judge may be removed by Parliament, the threshold for removal is “very high”.[24]  Indeed, the process is “extremely rare” and “difficult to implement”.[25]  Although the threshold for removal must be high so as to “ensure that judges are free from political interference”,[26] the difficulty then encountered when disciplining judges for misbehaviour and incapacity that does not reach this bar has been criticised as inadequate.[27]  Appleby and Le Mire have argued “[p]roblematic judicial behaviour is rare … Yet the rarity of such behaviour does not undermine the need for an appropriate system to deal with complaints when they do arise”.[28] 

    [24]   Australian Law Reform Commission, Judicial Impartiality – Ethics, Professional Development and Accountability (Background paper JI5, April 2021) 20. 

    [25]   Australian Law Reform Commission, Judicial Impartiality – Ethics, Professional Development and Accountability (Background paper JI5, April 2021) 20; John Doyle ‘Accountability: Parliament, the Executive and the Judiciary’ (Conference Paper, AIAL Forum, 18-19 June 1998) 9.

    [26]   Australian Law Reform Commission, Judicial Impartiality – Ethics, Professional Development and Accountability (Background paper JI5, April 2021) 20. 

    [27]   Australian Law Reform Commission, Judicial Impartiality – Ethics, Professional Development and Accountability (Background paper JI5, April 2021) 20.

    [28]   Gabrielle Appleby and Suzanne Le Mire, ‘Judicial Conduct: Crafting a System that Enhances Institutional Integrity’ (2014) 38(1) Melbourne University Law Review 1, 5.

1. Before the introduction of the Act, complaints of misconduct were generally dealt with by the head of the jurisdiction of the judicial officer. However, those complaints processes have been criticised as discretionary and informal, lacking independence, lacking disciplinary procedures and permanent administrative structures.[29]  The Hon Wayne Martin AC QC pointed out that:[30]

   neither I nor any other Head of Jurisdiction has appropriate facilities or mechanisms for the conduct of such investigations, and there may well be situations in which it may be alleged either by the complainant or the judicial officer that the Head of Jurisdiction has a conflict of interest in the conduct of such investigation.

   (footnote omitted)

   [29]   Law Council of Australia, Principles underpinning a Federal Judicial Commission (Policy Statement, December 2020) 3-4.

   [30]   Senate Legal and Constitutional Affairs References Committee, Parliament of Australia, Australia’s Judicial System and the Role of Judges (Report, December 2009) [6.33].

2. It is in this context that judicial commissions have been introduced in a number of Australian jurisdictions, including most recently in the Northern Territory.[31]

   [31]   See Judicial Commission Act 2020 (NT).

3. After the Act commenced operation, in April 2021 the Australian Law Reform Commission published background paper JI5 “Judicial Impartiality – Ethics, Professional Development and Accountability”, which from page 17 addressed responses to judicial incapacity and misconduct. The Australian Law Reform Commission identified existing responses as limited.[32]  They required a range of institutional structures “to enhance judicial impartiality and to ensure that mechanisms to protect it remain effective”.[33] 

   [32]   Australian Law Reform Commission, Judicial Impartiality – Ethics, Professional Development and Accountability (Background paper JI5, April 2021) 23.

   [33]   Australian Law Reform Commission, Judicial Impartiality – Ethics, Professional Development and Accountability (Background paper JI5, April 2021) 24.

   The Judicial Conduct Commissioner Act 2015 (SA) – the Second Reading

4. On 18 March 2015, the Attorney-General presented his Second Reading speech to the House of Assembly, explaining:[34]

   This Bill concerns the establishment of a transparent, formal and partly independent mechanism for dealing with complaints made against a judicial officer, be they derived internally or externally to the judicial system.  There is no current system at all to deal with these matters, the only recourse being correspondence with the head of the jurisdiction of the judge in question.  This has been justified in the past in the name of the undoubted constitutional principle of the independence of the judiciary.  That argument can be taken too far. 

   While it is absolutely clear that the functions of the judiciary as a decision-making institution should not be subjected to the will of the Executive, it by no means follows that any individual member of the judiciary should be immune from examination as to performance, or examination as to conduct in the performance of their duties – or in their extra judicial behaviour – that does not relate directly to the performance of the judiciary as an independent arm of government.

   [34]   South Australia, Parliamentary Debates, House of Assembly, 18 March 2015 (John Rau, Attorney-General).

5. The Attorney-General’s speech demonstrates that the Australian jurisdictions have responded in different ways to the growing awareness that complaints against judicial officers should not be handled, or at least not solely handled, by the relevant head of jurisdiction. 

6. The Attorney-General explained that in 1987 New South Wales established the Judicial Officers Act 1986 (NSW) which introduced a Judicial Commission with an annual budget of around $6 million.[35]  Apart from dealing with complaints against the judiciary, the Commission develops sentencing statistics and compiles and updates the judicial “Bench Book”.  It also addresses judicial education. 

   [35]   South Australia, Parliamentary Debates, House of Assembly, 18 March 2015 (John Rau, Attorney-General).

7. The Australian Capital Territory introduced a Judicial Commissions Act in 1994, operating under the Attorney-General.[36]  The Victorian Judicial Commission of Victoria Bill was introduced in 2010 but never enacted.[37]  The Bill proposed a scheme similar to that operating in New South Wales.

   [36]   Judicial Commissions Act 1994 (ACT).

   [37]   Judicial Commission of Victoria Bill 2010 (Vic).

8. In 2012, the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act2012 (Cth) was introduced. By this legislation, complaints against federal judges were dealt with by ad hoc Judicial Commissions appointed by resolution of both Houses of Parliament. Membership of these Commissions is judicial rather than parliamentary.

9. All of these developments were carefully reviewed by the Law Reform Commission of Western Australia in 2012.[38]  Whilst the Commission recommended the type of commission operating in New South Wales, those recommendations have not yet been reflected in legislation.[39]

   [38]   Law Reform Commission of Western Australia, Complaints Against Judiciary (Discussion Paper, September 2012).

   [39]   Complaints about members of the Western Australian Judiciary must be made in writing to the Chief Justice of Western Australia.

10. The Attorney-General explained that in late 2012 the Western Australian Law Reform Commission estimated that New South Wales had around 300 judicial officers, Victoria 243 and Western Australia 135.  At the same time, South Australia had around 84 judicial officers.[40] 

    [40]   South Australia, Parliamentary Debates, House of Assembly, 18 March 2015 (John Rau, Attorney-General).

11. In those circumstances, the view taken was that the New South Wales model was not appropriate for South Australia.  Rather, South Australia followed the New Zealand model of a single Judicial Commissioner.[41] 

    [41]   Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 (NZ).

    The Judicial Conduct Commissioner Act 2015 (SA) – relevant provisions

12. The long title to the Act emphasises that it is concerned to provide for the appointment of a Judicial Conduct Commissioner to examine complaints in relation to the conduct of judicial officers.

13. The need for balance between the enhancement of public confidence in the judicial system, and protecting the impartiality and integrity of that system, is reflected in the objects of the Act:[42]

    [42]   Judicial Conduct Commissioner Act 2015 (SA), s 3.

    3—Objects

    (1)The objects of this Act are to enhance public confidence in the judicial system and to protect the impartiality and integrity of the judicial system by—

    (a)     providing for the appointment of a Judicial Conduct Commissioner to receive and determine complaints regarding the conduct of judicial officers; and

    (b)     providing a fair process for dealing with such complaints that recognises and protects judicial independence; and

    (c)     enhancing the existing mechanisms for removal of judicial officers where they are unable or unwilling to appropriately discharge their duties.

    (2)No power or discretion vested in the Commissioner or any other person by this Act may be exercised so as to impugn the independence of the judiciary.

14. By s 4(1) the terms “complainant” and “complaint” are defined as follows:

    complainant means a person who makes a complaint under section 12(1);

    complaint means a complaint under section 12 about the conduct of a judicial officer and includes a referral by the Attorney General under section 12(6), a referral by a jurisdictional head under section 12(7) and a complaint initiated by the Commissioner under section 12(8);

15. The term “judicial officer” means a person appointed to hold or act in a “judicial office” which is defined to mean:[43]

    [43]   Judicial Conduct Commissioner Act 2015 (SA), s 4(1).

    (a)     the office of Judge of the Supreme Court;

    (b)     the office of Master of the Supreme Court, District Court Judge or any other Judge;

    (c)any other office involving the exercise of judicial functions that may only be occupied by a Judge or Master or by a person with other legal qualifications;

    (d)     the office of Magistrate;

    (e)any other office involving the exercise of judicial functions that may only be occupied by a Magistrate or by a person with other legal qualifications;

    (f)    the office of special justice;

    (g)     any other office prescribed by the regulations,

16. The “conduct of a judicial officer” that may be the subject of a complaint under the Act is defined by s 4(2) as follows:

    (2)For the avoidance of doubt (and without limiting the types of conduct that may be the subject of a complaint under this Act) conduct of a judicial officer that may be the subject of a complaint under this Act includes—

    (a)     any act or omission of such an officer—

    (i)whether occurring in the course of carrying out functions as a judicial officer or not; and

    (ii)     whether resulting from an illness or incapacity or not; and

    (b)     any acts of victimisation by a judicial officer.

17. Likewise, for the avoidance of doubt, by s 5(1) the Act is to apply in addition to, and without derogating from, any other Act or law relating to judicial conduct or to the removal of a judicial officer. Sub-section s 5(2) provides that the Act applies to the conduct of a judicial officer, whether occurring before or after the commencement of the Act.

18. As can be seen, the Act is not solely concerned with conduct by a judicial officer in the course of carrying out the functions of a judicial officer, including what may be described as the administrative functions of a judicial officer. Conduct by a judicial officer not connected with, but whilst appointed to, judicial office is at least potentially captured. Presumably, conduct occurring before appointment to judicial office is not captured. Conduct after judicial service is completed does not appear to be captured either. By contrast, where the relevant conduct results from “illness or incapacity” that conduct is captured regardless whether the onset of the illness or incapacity predates appointment to judicial office.

19. Central to the operation of the Act is the role of the Commissioner. The functions of the Commissioner are defined by s 6(1) as follows:

    (1)     The functions of the Commissioner are—

    (a)     to receive and deal with complaints made in accordance with this Act in relation to the conduct of judicial officers; and

    (b)     to perform any prescribed functions; and

    (c)     to perform other functions conferred on the Commissioner by this or any other Act.

20. That the Commissioner is independent of the Executive and the Parliament is made clear by s 6(2):

    (2)The Commissioner is not subject to the direction of any person in relation to any matter, including—

    (a)     the manner in which functions are carried out or powers exercised under this or any other Act; and

    (b)     the priority that the Commissioner gives to a particular matter in carrying out functions under this or any other Act.

21. Similarly, that the Commissioner is intended to be independent of the judiciary, and must not undermine the independence of the judiciary, is reflected in s 6(3):

    (3)It is not a function of the Commissioner to challenge or call into question the legality or correctness of any instruction, direction, order, judgment, or other decision given or made by a judicial officer in relation to any legal proceedings.

22. By s 6(4), the Commissioner has all the powers necessary for the carrying out of his or her functions and s 6(5) provides examples of the things the Commissioner may do for the purposes of exercising powers and functions under “Part 3¾Complaints”.  Those things include obtaining relevant court documents and transcript and requiring a person to furnish information or produce books and documents.  The Commissioner may also examine, copy and take extracts from books and documents, as well as take possession of them, where they have been produced by a person under s 6(5)(c).

23. The Commissioner is appointed by the Governor pursuant to s 7 of the Act for a term not exceeding seven years on conditions determined by the Governor.[44]  Whilst the Commissioner may be reappointed, he or she cannot be reappointed for a term exceeding 10 years in total.[45] Eligibility for appointment is governed by the following criteria under s 7(3):

    (3)     A person is only eligible for appointment as the Commissioner if the person—

    (a)     is a legal practitioner of at least 7 years standing (taking into account, for that purpose, periods of legal practice and judicial service within and outside the State) or a former judge of the High Court of Australia, the Federal Court of Australia or the Supreme Court or any other court of a State or Territory of the Commonwealth; and

    (b)     is not a judicial officer or member of an Australian Parliament.

    [44]   Judicial Conduct Commissioner Act 2015 (SA), s 7(1).

    [45]   Judicial Conduct Commissioner Act 2015 (SA), s 7(2).

24. A person may only be appointed Commissioner if, following a referral by the Attorney-General of the proposed appointment to the Statutory Officers Committee established under the Parliamentary Committees Act 1991 (SA), the appointment is approved by that Committee, or it fails within seven days of referral to notify the Attorney-General in writing that it does not approve the appointment.[46] 

    [46]   Judicial Conduct Commissioner Act 2015 (SA), s 7(4).

25. If the person was immediately before appointment a judicial officer, leave and other entitlements may be taken to be a continuation of service as a judicial officer.[47]

    [47]   Judicial Conduct Commissioner Act 2015 (SA), s 7(6).

26. The Commissioner may be removed by the Governor on the address of both Houses of Parliament.[48]  The Commissioner may be suspended by the Governor for a contravention of a condition of appointment, or for misconduct, or for a failure or incapacity to carry out official duties satisfactorily.[49] However, except as provided by s 7, the Commissioner may not be removed or suspended from office, nor will the office of the Commissioner become vacant.[50]

    [48]   Judicial Conduct Commissioner Act 2015 (SA), s 7(9).

    [49]   Judicial Conduct Commissioner Act 2015 (SA), s 7(10).

    [50]   Judicial Conduct Commissioner Act 2015 (SA), s 7(15).

27. By s 11, the Commissioner may delegate a function or power under this or any other Act except a prescribed function or power and, indeed, a function or power delegated may, if the instrument of delegate so provides, be further delegated.[51]

    [51]   Judicial Conduct Commissioner Act 2015 (SA), s 11(2).

28. Complaints are addressed by Part 3 of the Act. Because the applicant’s argument in this case turns on the manner in which the complaints relating to him were handled by the Commissioner, it is appropriate to set out ss 12 and 13 in their entirety. Division 1 addresses the making of complaints and comprises s 12:

    12—Making of complaints

    (1)     Subject to subsection (2), a person may make a complaint to the Commissioner about any conduct of a judicial officer.

    (2) A person who is subject to an order under section 39 of the Supreme Court Act 1935 prohibiting him or her from instituting proceedings (or proceedings of a particular class) may not make a complaint under this Act.

    (3)     Subject to subsections (4) and (4a), the Commissioner must give notice to the judicial officer and the relevant jurisdictional head of a complaint under subsection (1).

    (4)     If section 15 applies to a complaint, the Commissioner must not give any notices under subsection (3) on receipt of the complaint but may give such notices if consideration of the complaint under this Act is resumed following the referral under section 15.

    (4a) The Commissioner may, if the Commissioner thinks fit, determine not to give any notices under subsection (3) in relation to a complaint until the Commissioner has determined whether the complaint is one that must be dismissed under section 17(1).

    (5)     A complaint under subsection (1) must—

    (a)     be in writing; and

    (b)     identify the judicial officer who is the subject of the complaint; and

    (c)     identify the complainant; and

    (d)     set out the matters to which the complaint relates; and

    (e)include any other material, and be verified in any manner, required by the Commissioner.

    (6)     The Attorney General may, by notice in writing, refer to the Commissioner any matters regarding the conduct of a judicial officer.

    (7)     A jurisdictional head may, by notice in writing, refer to the Commissioner any matters regarding the conduct of a judicial officer in relation to whom he or she would be the relevant jurisdictional head (in accordance with the definition in section 4).

    (8)     The Commissioner may, on his or her own initiative, treat as a complaint any matters concerning the conduct of a judicial officer.

29. It can be seen that there are four mechanisms by which the jurisdiction of the Commissioner is enlivened: 

    ·The first is a complaint made to the Commissioner;[52]

    ·The second is a referral made by the Attorney-General; [53] 

    ·The third is a referral made by the jurisdictional head;[54] and

    ·The fourth is where the Commissioner “on his or her own initiative” treats as a complaint any matters concerning the conduct of a judicial officer.[55]

    [52]   Judicial Conduct Commissioner Act 2015 (SA), s 12(1).

    [53]   Judicial Conduct Commissioner Act 2015 (SA), s 12(6).

    [54]  Judicial Conduct Commissioner Act 2015 (SA), s 12(7). The terms “jurisdictional head” and “relevant jurisdictional head” are defined in s 4(1) by reference to Part 5A of the Courts Administration Act 1993 (SA). If the judicial officer the subject of complaint is a jurisdictional head, the relevant jurisdictional head is the Chief Justice. Otherwise, the “relevant jurisdictional head” is the jurisdictional head “who has power to issue requirements to that judicial officer in accordance with Part 5A”. By s 27A of Part 5A of the Courts Administration Act 1993 (SA), the "jurisdictional head" of a court means “the judicial officer who has primary responsibility for the administration of the court”. Those responsibilities are spelled out in s 27C.

    [55]   Judicial Conduct Commissioner Act 2015 (SA), s 12(8).

30. Division 2 addresses the “preliminary examination” which the Commissioner must make of “each complaint”. It will be recalled that the term “complaint” is defined by s 4(1) to include each of the four mechanisms by which the Commissioner’s jurisdiction may be enlivened under s 12. Section 13 provides:

    Division 2—Preliminary examination of complaint

    13—Preliminary examination of complaints

    (1)     Subject to subsection (6), the Commissioner must conduct a preliminary examination of each complaint received to determine whether—

    (a)the complaint is one that should be referred to the Office for Public Integrity in accordance with section 15; or

    (b)there are grounds for exercising a power under this Act to dismiss the complaint.

    (2)     The Commissioner may conduct a preliminary examination in any manner the Commissioner thinks fit (but the Commissioner must act in accordance with the principles of procedural fairness).

    (3)     In conducting a preliminary examination, the Commissioner may make such inquiries into the complaint as he or she thinks appropriate and may—

    (a)require further information from the complainant (and may require that such further information be verified in any manner required by the Commissioner); and

    (b)     consult the relevant jurisdictional head.

    (4)     The Commissioner may determine to deal with a series of complaints relating to a particular judicial officer as if they were a single complaint (and may do so even if the Commissioner has previously dealt with any of those complaints or is in the course of dealing with any of those complaints).

    (5)     Subject to sections 14 and 15, the Commissioner must conduct a preliminary examination as efficiently and expeditiously as is practicable.

    (6) If, before conducting a preliminary examination of a complaint, the Commissioner determines that the complaint is one that must be dismissed under section 17(1), the Commissioner may dismiss the complaint without conducting a preliminary examination.

    (7)     If the Commissioner exercises the power under subsection (6) to dismiss a complaint, the Commissioner is not required to give any notification in relation to the complaint to the judicial officer who is the subject of the complaint or to the relevant jurisdictional head but must give any complainant written notification stating—

    (a)     that the Commissioner has exercised that power; and

    (b)the grounds on which the Commissioner is satisfied that the complaint is one that must be dismissed under section 17(1).

1. For the reasons earlier given, we have rejected the starting point for the judicial officer’s Kable challenge. The Panel did not rule that it was a commission for the purposes of the Royal Commission Act. Further, and in any event, we have explained why, in our view, s 24(1) of the JCC Act does not make the Panel, or deem it to be, a commission for the purposes of the Royal Commission Act.  It confers the Panel with the powers of a commission under the Royal Commission Act, but does not require or permit it to conduct its inquiry as though it were a commission under that Act.

2. The judicial officer’s conception of the Panel’s obligations of procedural fairness underpinning his Kable challenge is also misconceived. While we have concluded that the judicial officer was provided with adequate notice of the allegations made against him (for the purposes of both the preliminary examination conducted by the Commissioner and the referral to the Panel for it to inquire and report), this was not a consequence of the Panel being entitled to conduct its inquiry as though it were a roving inquiry of the kind that might be undertaken by a commission under the Royal Commission Act.  Rather, it was because we were satisfied that the referral adequately identified the complaints (including both the specific allegation and the course of conduct allegation the subject of complaint 8) which the Panel was required to inquire into, and report upon.

3. Having rejected the starting point, and central premise, of the judicial officer’s Kable challenge, there is no occasion for us to give any further consideration to that challenge. The judicial officer’s submissions do not engage with the view we have taken of the operation of the JCC Act, and the implications this has for the nature of the task to be undertaken by the Panel and its obligation to accord procedural fairness. On this view, while the JCC Act, through the Panel, operates to promote accountability on the part of judicial officers, we do not consider that it operates to impair the impartiality or independence of judicial officers or the courts of which they are members.

   Conclusion

4. For the reasons given, we would dismiss the judicial officer’s application for judicial review.