Courts Legislation (Judicial Conduct) Act 2005 (Vic)
Courts Legislation (Judicial Conduct) Act 2005
Act No. 16/2005
table of provisions
Section Page
Part 1—Preliminary
1.Purpose
2.Commencement
Part 2—Amendment of Constitution Act 1975
3.Entrenchment of new Part IIIAA
4.New Part IIIAA inserted
Part IIIAA—The Judiciary
87AAA.Definitions
87AAB.Removal from judicial office
87AAC.Judicial panel
87AAD.Appointment of investigating committee
87AAE.Role of investigating committee
87AAF.Powers of investigating committee
87AAG.Procedure and evidence at an investigation
87AAH.Report of investigating committee
87AAI.Retirement
87AAJ.Abolition of judicial office
5.Amendments consequential on new Part IIIAA
Part 3—Amendments of other Acts consequential on new Part IIIAA of Constitution Act 1975
6.Amendment of Supreme Court Act 1986
7.Amendment of County Court Act 1958
8.Amendment of Magistrates' Court Act 1989
Part 4—Amendment of Victorian Civil and Administrative Tribunal Act 1998
9.Removal of non-judicial members from office
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Endnotes
Courts Legislation (Judicial Conduct) Act 2005
[Assented to 24 May 2005]
The Parliament of Victoria enacts as follows:
Part 1—Preliminary
1.Purpose
The main purpose of this Act is to amend the Constitution Act 1975—
(a)to make fresh provision with respect to the grounds for the removal from office of judicial office holders consistent with section 72 of the Commonwealth of Australia Constitution Act;
(b)to provide for the appointment of an investigating committee to consider whether facts exist that could amount to proved misbehaviour or incapacity such as to warrant the removal from office of the holder of a judicial office;
(c)to give an entitlement to re-appointment to a judicial office of equivalent or higher status to the holder of an abolished judicial office.
2.Commencement
(1)This Part comes into operation on the day after the day on which this Act receives the Royal Assent.
(2)Subject to sub-section (3), the remaining provisions of this Act come into operation on a day to be proclaimed.
(3)If the provisions referred to in sub-section (2) do not come into operation before 1 June 2006, they come into operation on that day.
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Part 2—Amendment of Constitution Act 1975
3.Entrenchment of new Part IIIAA
(1)After section 18(2)(fa) of the Constitution Act 1975 insert—
"(fb)Part IIIAA; or".
(2)In section 18(2)(g) of the Constitution Act 1975, for "(fa)" substitute "(fb)".
4.New Part IIIAA inserted
After Part III of the Constitution Act 1975 insert—
'Part IIIAA—The Judiciary
87AAA.Definitions
In this Part—
"investigating committee" means an investigating committee appointed under section 87AAD;
"judicial office" means the office of any of the following—
(a)Judge of the Supreme Court;
(b)Master of the Supreme Court;
(c)judge of the County Court;
(d)master of the County Court;
(e)magistrate;
"panel" means panel established under section 87AAC;
"qualifying office" means the office of judge of any of the following courts—
(a)Federal Court of Australia;
(b)Family Court of Australia;
(c)Family Court of Western Australia;
(d)Supreme Court of a State other than Victoria;
(e)Supreme Court of the Australian Capital Territory or the Northern Territory;
"special majority" has the same meaning as in section 18.
87AAB.Removal from judicial office
(1)The Governor in Council may remove the holder of a judicial office from that office on the presentation to the Governor of an address from both Houses of the Parliament agreed to by a special majority in the same session praying for that removal on the ground of proved misbehaviour or incapacity.
(2)A resolution of a House of the Parliament or of both Houses of the Parliament praying for the removal from office of the holder of a judicial office is void if an investigating committee appointed under section 87AAD has not concluded that facts exist that could amount to proved misbehaviour or incapacity such as to warrant the removal of that office holder from office.
(3)This section extends to term appointments or acting appointments to a judicial office but does not prevent the holder of the office ceasing to hold office on the expiry of the term or the period for which he or she is appointed to act.
(4)Except as provided by this Part, no holder of a judicial office can be removed from that office.
87AAC.Judicial panel
(1)A panel of 7 persons is established for the purposes of this Part.
(2)Members of the panel are appointed by the Attorney-General for the term specified in their instrument of appointment.
(3)A person is only eligible for appointment as a panel member if he or she has held a qualifying office but no longer holds one.
(4)The office of a panel member becomes vacant if he or she is appointed to a qualifying office.
(5)A panel member may resign his or her office as panel member by delivering to the Attorney-General a signed letter of resignation.
87AAD.Appointment of investigating committee
(1)An investigating committee is to be appointed if the Attorney-General is satisfied that there are reasonable grounds for the carrying out of an investigation into whether facts exist that could amount to proved misbehaviour or incapacity on the part of the holder of a judicial office such as to warrant the removal of that office holder from office.
(2)An investigating committee consists of 3 members of the panel appointed by the Attorney-General on the recommendation of the most senior member for the time being of the panel.
(3)The Attorney-General, on the recommendation of the most senior member for the time being of the panel, must appoint one of the members of the investigating committee as chairperson of the committee.
(4)For the purposes of this section panel members have seniority in relation to each other according to the dates of their first appointment to a qualifying office.
87AAE.Role of investigating committee
The role of an investigating committee is to investigate the matter relating to the holder of a judicial office referred to it and report to the Attorney-General, within the period specified by him or her, its conclusion as to whether facts exist that could amount to proved misbehaviour or incapacity such as to warrant the removal of that office holder from office.
87AAF.Powers of investigating committee
(1)An investigating committee has, and may exercise, the powers conferred by sections 17, 18, 19, 19A, 19B, 19C, 19D, 19E, 20, 20A, 21 and 21A of the Evidence Act 1958 as if the committee were a body of persons to whom the Governor in Council has issued a commission and the chairperson of the committee were the president or chairperson of the commission.
(2)A person is not excused from answering any question or producing any document or thing when required by an investigating committee on the ground that the answering of the question or the production of the document or thing is prohibited by or under any Act.
(3)The answering of a question or the production of a document or thing, when required by an investigating committee, does not constitute a breach of a provision made by or under any Act prohibiting the disclosure of information of a kind contained in that answer, document or thing.
87AAG.Procedure and evidence at an investigation
(1)If the investigating committee agrees, a person or body may be legally represented at the investigation or represented by an agent of any other kind.
(2)The investigating committee is not bound by the rules of evidence and may be informed on any matter in issue at the inquiry in any manner that it considers appropriate.
(3)The investigating committee may give directions as to the procedure to be followed at or in connection with the investigation.
87AAH.Report of investigating committee
(1)The investigating committee must, within the period required by the Attorney-General, prepare a report on the conduct and findings, and any conclusions, of the investigation and submit the report to the Attorney-General.
(2)The report of the investigating committee must state its conclusion as to whether facts exist that could amount to proved misbehaviour or incapacity such as to warrant the removal of that office holder from office.
(3)The Attorney-General may, if he or she considers it appropriate to do so, cause a copy of the report of the investigating committee to be laid before each House of Parliament.
87AAI.Retirement
This Part does not prevent the fixing by or under an Act of an age at which all holders of a judicial office, or all holders of a judicial office in a court, are required to retire or the alteration from time to time of an age so fixed.
87AAJ.Abolition of judicial office
(1)This Part does not prevent the abolition of a judicial office by or under an Act.
(2)The person who held an abolished judicial office is entitled (without loss of remuneration) to be appointed to and to hold another judicial office in the same court or in a court of equivalent or higher status, unless already the holder of such an office.
(3)That right remains operative for the period during which the person was entitled to hold the abolished office, subject to removal as provided by this Part. The right lapses if the person declines appointment to the other office or resigns from it.
(4)This section applies whether the judicial office was—
(a)abolished directly; or
(b)abolished indirectly by the abolition of a court or part of a court.'.
5.Amendments consequential on new Part IIIAA
(1)In section 77(1) of the Constitution Act 1975—
(a)omit "during their good behaviour";
(b)omit "but the Governor may remove any such Judge upon the address of the Council and the Assembly".
(2)Before section 77(4)(a) of the Constitution Act 1975 insert—
"(aaa)on the judge being removed from office by the Governor in Council in accordance with Part IIIAA; or
(aa)on the abolition of the office of the judge by under an Act; or".
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Part 3—Amendments of other Acts consequential on new Part IIIAA of Constitution Act 1975
6.Amendment of Supreme Court Act 1986
(1)In section 104(3A)(b) of the Supreme Court Act 1986, for "on the address of both Houses of Parliament" substitute "in Council in accordance with Part IIIAA of the Constitution Act 1975".
(2)After section 104(3A)(b) of the Supreme Court Act 1958 insert—
"(ba)if his or her office is abolished by or under an Act; or".
7.Amendment of County Court Act 1958
(1)Section 9 of the County Court Act 1958 is repealed.
(2)Before section 14(1)(a) of the County Court Act 1958 insert—
"(aaa)on the judge being removed from office by the Governor in Council in accordance with Part IIIAA of the Constitution Act 1975; or
(aa)on the abolition of the office of the judge by or under an Act; or".
(3)In section 17A(2)(b) of the County Court Act 1958, for "on the address of both Houses of Parliament" substitute "in Council in accordance with Part IIIAA of the Constitution Act 1975".
(4)After section 17A(2)(b) of the County Court Act 1958 insert—
"(ba)if his or her office is abolished; or".
8.Amendment of Magistrates' Court Act 1989
(1)In section 9(10) of the Magistrates' Court Act 1989, omit "or suspended" (where twice occurring).
(2)Section 11 of the Magistrates' Court Act 1989 is repealed.
(3)In section 12 of the Magistrates' Court Act 1989—
(a)omit "he or she";
(b)in paragraph (a), before "attains" insert "he or she";
(c)for paragraph (b) substitute—
"(b)he or she is removed from office by the Governor in Council in accordance with Part IIIAA of the Constitution Act 1975; or
(c)his or her office is abolished by or under an Act.".
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Part 4—Amendment of Victorian Civil and Administrative Tribunal Act 1998
9.Removal of non-judicial members from office
For section 23(5) of the Victorian Civil and Administrative Tribunal Act 1998 substitute—
"(5)The person who conducted the investigation and the Minister may only recommend that a member be removed on the ground of proved misbehaviour or incapacity.".
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EndnoteS
Minister's second reading speech—
Legislative Assembly: 24 February 2005
Legislative Council: 5 May 2005
The long title for the Bill for this Act was "to amend the Constitution Act 1975 to make fresh provision with respect to the grounds for the removal from office of judicial office holders, provide for the appointment of an investigating committee and give an entitlement to re‑appointment to a judicial office to the holder of an abolished judicial office, to amend the Supreme Court Act 1986, the County Court Act 1958, the Magistrates' Court Act 1989 and the Victorian Civil and Administrative Tribunal Act 1998 and for other purposes."
Special majorities:
Legislative Assembly: 4 May 2005
Legislative Council: 18 May 2005
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