Division 3Division 3 The Conduct Division
22 Constitution 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.
23 Examination 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.
24 Hearings 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with the complaint.(2) A hearing may be held in public or in private, as the Conduct Division may determine.(3), (4) (Repealed)(5) If a hearing or part of a hearing is to take place in private, the Conduct Division may give directions as to the persons who may be present.(6) At a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.
25 Powers 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) (Repealed)
26 Dismissal of complaint by Conduct Division
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.
28 Substantiation 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.
(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) (Repealed)(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) (Repealed)(8) A copy of any report referred to in this section shall also be furnished to the judicial officer concerned.