Judicial Commission of Victoria Act 2016

Authorised by the Chief Parliamentary Counsel Authorised Version i Judicial Commission of Victoria Act 2016 No. 16 of 2016 TABLE OF PROVISIONS Section Page Part 1—Preliminary 1 1 Purposes 1 2 Commencement 2 3 Definitions 2 4 Disclosure considerations 11 Part 2—Complaints and referrals 12 5 Complaints 12 6 Complaints by professional bodies 12 7 Referrals by head of jurisdiction 13 8 Referrals by Attorney-General 13 9 Referrals by the IBAC 13 10 Complaint or referral may be made despite other proceeding 14 11 Notification to the IBAC does not affect complaint or referral 14 12 Officer concerned not required to disqualify themselves from proceeding 15 Part 3—Investigations by the Judicial Commission 16 Division 1—Procedure in investigating complaints and referrals by Judicial Commission 16 13 Outcome of consideration of matter by Judicial Commission 16 14 Officer concerned to be given opportunity to respond if matter to be referred 17 15 Consultation with head of jurisdiction 18 16 Dismissal of complaints and referrals by Judicial Commission 18 17 Withdrawal of complaints and referrals 20 18 Judicial Commission must adjourn investigation of certain complaints or referrals 21 19 Referral to investigating panel, nominated head of jurisdiction or nominated person 22 Division 2—Notifications by Judicial Commission 23 20 Notification of head of jurisdiction 23 21 Notification of officer concerned 24 22 Notification of Attorney-General 24 -- 1 of 169 -- Section Page ii Authorised by the Chief Parliamentary Counsel 23 Notification of complainant 25 24 Content of notice relating to assessable disclosures 26 Division 3—Notifications to the IBAC and the Victorian Inspectorate 26 25 Mandatory notification of corrupt conduct to the IBAC 26 26 Mandatory notification to the Victorian Inspectorate 27 Division 4—General powers and procedures of Judicial Commission 27 27 Request for further information 27 28 Powers as to court or tribunal documents 28 29 Requirement to undergo medical examination 29 30 Effect of failure to undergo medical examination 30 31 Power to adjourn investigation 30 32 Considerations when matter the subject of other investigation or legal proceedings 30 Part 4—Investigations by an investigating panel 32 Division 1—Investigating panel procedure 32 33 Role of investigating panel 32 34 Outcome of investigating panel investigation 32 35 Dismissal of complaints and referrals by investigating panel 33 36 An investigating panel must adjourn investigation of certain complaints or referrals 34 37 Constitution of an investigating panel for making decisions 35 38 Consultation with head of jurisdiction 36 39 Report to Governor 36 40 Report to Attorney-General 37 41 Referral to nominated head of jurisdiction or nominated person 37 42 Requirements before making a report 38 43 Notification of officer concerned and Judicial Commission 38 44 Notification of head of jurisdiction 39 45 Notification of Attorney-General 40 46 Notification of complainant 40 47 Content of notice relating to assessable disclosures 41 Division 2—Notifications to the IBAC and the Victorian Inspectorate 41 48 Notification to the IBAC by an investigating panel 41 49 Notification to the Victorian Inspectorate by an investigating panel 42 50 Extension or referral of matter 43 -- 2 of 169 -- Section Page iii Authorised by the Chief Parliamentary Counsel Part 5—Investigation powers and procedures 44 Division 1—General powers and procedures of investigating panels 44 51 Investigating panel proceedings 44 52 General requirements 44 53 Investigating panel may engage Australian lawyer to assist 44 54 Request for further information 45 55 Hearings and written submissions 45 56 Powers as to court or tribunal documents 46 57 Requirement to undergo medical examination 46 58 Effect of failure to undergo medical examination 47 59 Power to adjourn investigation 48 60 Considerations when matter the subject of other investigation or legal proceedings 48 Division 2—Hearings 49 61 Notice of hearing 49 62 Hearing procedure 49 63 Offence to be present at closed hearing 50 64 Protection of lawyers and witnesses 51 65 Notification of certain matters to the Judicial Commission 51 66 Notification of certain matters to the Victorian Inspectorate 52 67 Copies of particular guidelines to be provided to Victorian Inspectorate 52 68 Request for information by the Victorian Inspectorate 53 Division 3—Additional powers 53 69 Power to require production of documents 53 70 Witness summons 54 71 Content and form of witness summons 55 72 Witness summons directed to person under 16 years 55 73 Service of witness summons 56 74 Supreme Court may order service by other means 56 75 Witness already held in custody 57 76 Specific provisions relating to witnesses 57 77 Actions to be taken before questioning of a witness or requiring production of a document or other thing 58 78 Power to examine on oath or affirmation 59 79 Offence for summoned witness to fail to attend hearing 60 80 Offence for summoned witness to refuse or fail to answer question 61 81 Offence for summoned witness to fail to produce document or thing 61 82 Offence for summoned witness to fail to take oath or make affirmation 61 83 Allowances for compliance with witness summons 61 -- 3 of 169 -- Section Page iv Authorised by the Chief Parliamentary Counsel Division 4—Search warrant powers 62 84 Search warrant 62 85 Search warrant in relation to court or VCAT premises 64 86 Procedure for executing a search warrant 64 87 Copies or receipts to be given for documents or other things 66 88 Return of documents and other things 66 89 Assistance in executing search warrants 67 Division 5—Privilege 68 90 Privilege against self-incrimination abrogated 68 91 Journalist privilege does not apply 69 92 Procedure for determining claims of privilege—notice requiring production or witness summons 70 93 Procedure for determining privilege—search warrants 71 94 Application to Supreme Court to determine privilege 72 95 Determination of claim 73 96 Offence to open sealed envelope or have access to document or thing 75 Part 6—Further provisions for investigations 76 Division 1—Standing down 76 97 Standing down of certain judicial officers or non-judicial members of VCAT by principal head of jurisdiction 76 98 Standing down of officer concerned on recommendation of Judicial Commission or an investigating panel 77 99 Effect of standing down of certain judicial officers and non-judicial members of VCAT 80 100 Effect of standing down of judicial officer under section 98(2)(b) 81 101 Consultation requirements 81 102 Alteration to or revocation of standing down 81 103 Reinstatement of officers concerned 82 Division 2—Relevant council of judges procedure for standing down determination 83 104 Determination by relevant council of judges 83 105 Meeting of relevant council of judges to make determination 84 Division 3—Process for medical examinations 84 106 Conduct of medical examination 84 107 Report after medical examination 85 108 Further medical report may be provided by officer 86 -- 4 of 169 -- Section Page v Authorised by the Chief Parliamentary Counsel Division 4—Nominating head of jurisdiction or other person 86 109 Power to nominate additional head of jurisdiction 86 110 Power to nominate person for Chief Justice, Chief Judge or Chief Magistrate 87 Division 5—Statement of reasons 88 111 Person not entitled to statement of reasons 88 Division 6—Costs 88 112 Costs 88 Part 7—Action to be taken on referral by Judicial Commission or an investigating panel 89 Division 1—Preliminary 89 113 Definition 89 114 Functions of head of jurisdiction not limited 89 Division 2—Referrals and reports to nominated head of jurisdiction or nominated person 89 115 Actions on receiving Judicial Commission report 89 116 Matters to be taken into account in making decision as to action 90 117 Procedures on making a decision as to action 90 118 Where there is more than one nominated head of jurisdiction 90 119 Notice of action to be given to complainant or referrer 91 Division 3—Report as to removal of non-judicial member of VCAT 91 120 Power to recommend removal of non-judicial member of VCAT on receiving report 91 121 Power of Governor in Council to remove non-judicial member of VCAT 91 Part 8—Administration 92 Division 1—The Judicial Commission and the Board 92 122 Delegation by Judicial Commission 92 123 Acting judicial members of the Board 93 124 Acting appointed members of the Board 94 125 Meetings of the Board 95 126 Decisions and proceedings of the Board 96 127 Application of provisions of Part 5 of the Public Administration Act 2004 96 -- 5 of 169 -- Section Page vi Authorised by the Chief Parliamentary Counsel Division 2—Director and staff of Judicial Commission 97 128 Appointment of Director 97 129 Functions of Director 98 130 Removal of Director from office 98 131 Delegation by Director 99 132 Acting Director 99 133 Engagement of consultants 100 Division 3—Guidelines and reports 100 134 Guidelines 100 135 Annual report of the Judicial Commission 101 Division 4—Miscellaneous 104 136 Immunity of members of the Board 104 137 Immunity of member of an investigating panel 105 138 Use and disclosure of information 105 139 Release of information to public 107 Part 9—General 108 140 Vexatious complainants 108 141 Offence to make statement which is false or misleading 109 142 Disclosure of information 109 143 Exemption from Freedom of Information Act 1982 110 144 Exemption from Health Records Act 2001 110 145 Exemption from Privacy and Data Protection Act 2014 110 146 Regulations 111 147 Savings and transitional provisions 112 Part 10—Amendment of Constitution Act 1975 113 148 Repeal of section 81A(2) 113 149 As to pensions of Judges of the Supreme Court and their partners and children 113 150 Judges not to hold any other place of profit 113 151 New Division heading inserted 114 152 Definitions 114 153 New Division heading inserted 117 154 Removal from judicial office 117 155 Repeal of sections 87AAC to 87AAH 117 156 New Divisions 3 to 6 of Part IIIAA inserted 117 Part 11—Amendment of other Acts 133 Division 1—Amendment of Court Services Victoria Act 2014 133 157 Definitions 133 158 Function of Court Services Victoria 133 159 Functions and powers 133 160 Budget 134 -- 6 of 169 -- Section Page vii Authorised by the Chief Parliamentary Counsel Division 2—Amendment of Independent Broad-based Anti- corruption Commission Act 2011 134 161 Definitions 134 162 Definitions of public body, public officer and public sector 135 163 Directions 135 164 Referral of complaint or notification for investigation by another person or body 136 165 New section 74A inserted 136 166 Withdrawal of referred complaint or notification 136 Division 3—Amendment of Protected Disclosure Act 2012 137 167 Definitions 137 168 Disclosure of improper conduct or detrimental action 138 169 Disclosures that must be made to the IBAC 138 170 Disclosures that must be made to the IBAC or the Victorian Inspectorate 138 171 New section 16A inserted 138 172 Notification of disclosure to the IBAC by other entities 139 173 Circumstances in which information may be disclosed 139 174 Review of procedures 140 175 Review of procedures established by the IBAC and the Ombudsman 140 176 Offence to disclose certain advice 140 Division 4—Amendment of Victorian Inspectorate Act 2011 141 177 Definitions 141 178 Objects of Act 142 179 Functions of the Victorian Inspectorate 142 180 New section 85A inserted 143 181 Recommendations must not include information likely to identify person who makes an assessable disclosure 143 182 Special reports 144 183 Outcome of investigation 144 184 Matters to be included in annual report 145 185 Exemption from Freedom of Information Act 1982 145 Division 5—Amendment of other Acts 145 186 Children, Youth and Families Act 2005—Definitions 145 187 Children, Youth and Families Act 2005—New section 509A inserted 146 188 Children, Youth and Families Act 2005—Repeal of sections 542G to 542I 146 189 Coroners Act 2008—New section 95A inserted 146 190 Coroners Act 2008—Repeal of sections 102G to 102I 147 191 County Court Act 1958—New section 8E 147 192 County Court Act 1958—Repeal of section 12A(2) 147 -- 7 of 169 -- Section Page viii Authorised by the Chief Parliamentary Counsel 193 County Court Act 1958—Provision for pensions to County Court judges and their partners 147 194 County Court Act 1958—Pension entitlements of associate judges, their partners and children 148 195 County Court Act 1958—Repeal of sections 17R to 17T 148 196 County Court Act 1958—Council of Judges 149 197 Magistrates' Court Act 1989—Repeal of section 9B(2) 149 198 Magistrates' Court Act 1989—New section 12A inserted 149 199 Magistrates' Court Act 1989—Council of magistrates 150 200 Magistrates' Court Act 1989—Repeal of sections 16F to 16H 150 201 Ombudsman Act 1973—Definitions 150 202 Ombudsman Act 1973—Disclosure of information by the Ombudsman 150 203 Ombudsman Act 1973—Amendment of Schedules 2 and 3 150 204 Parliamentary Committees Act 2003—Definitions 151 205 Parliamentary Committees Act 2003—Accountability and Oversight Committee 151 206 Public Administration Act 2004—Definition 153 207 Supreme Court Act 1986—Arrangement of business of Court of Appeal 153 208 Supreme Court Act 1986—Council of Judges 153 209 Supreme Court Act 1986—New Division 5A inserted 153 210 Supreme Court Act 1986—Pension entitlements of Associate Judges, their partners and children 154 211 Supreme Court Act 1986—Repeal of sections 113I to 113K 154 212 Victorian Civil and Administrative Tribunal Act 1998 154 Division 6—Repeal of amending Parts 155 213 Repeal of Part 10 and this Part 155 Part 12—Amendment of this Act 156 Division 1—Amendments relating to dual commission holders 156 214 Definition 156 215 Effect of standing down of judicial officer under section 98(2)(b) 157 216 Meeting of relevant council of judges to make determination 157 Division 2—Repeal of Part 12 158 217 Repeal of Part 12 158 Schedule 1—Integrity bodies 159 Schedule 2—Savings and transitional provisions 160 ═══════════════ Endnotes 161 1 General information 161 -- 8 of 169 -- Authorised by the Chief Parliamentary Counsel Authorised Version 1 Judicial Commission of Victoria Act 2016† No. 16 of 2016 [Assented to 19 April 2016] The Parliament of Victoria enacts: Part 1—Preliminary 1 Purposes The main purposes of this Act are— (a) to amend the Constitution Act 1975 to establish the Judicial Commission of Victoria under that Act; and (b) to provide for investigations into judicial officers and non-judicial members of VCAT; and Victoria -- 9 of 169 -- Part 1—Preliminary Judicial Commission of Victoria Act 2016 No. 16 of 2016 2 Authorised by the Chief Parliamentary Counsel (c) to make consequential and other amendments to other Acts. 2 Commencement (1) Subject to subsections (2), (3) and (4), this Act comes into operation on a day or days to be proclaimed. (2) If a provision of this Act (other than Part 12) does not come into operation before 1 July 2017, it comes into operation on that day. (3) If a provision of Division 1 of Part 12 does not come into operation before 1 June 2017, it comes into operation on that day. (4) If Division 2 of Part 12 does not come into operation before 1 June 2018, it comes into operation on that day. 3 Definitions (1) In this Act— additional head of jurisdiction means— (a) the President of VCAT for a judicial officer (other than the President of VCAT) appointed or assigned to VCAT; or (b) the President of the Children's Court for a magistrate or a reserve magistrate who has been appointed or assigned to that Court; or (c) the State Coroner for a magistrate or a reserve magistrate who has been appointed or assigned to the Coroners Court; appointed member, of the Board, has the same meaning as in Part IIIAA of the Constitution Act 1975; -- 10 of 169 -- Part 1—Preliminary Judicial Commission of Victoria Act 2016 No. 16 of 2016 3 Authorised by the Chief Parliamentary Counsel assessable disclosure has the same meaning as in the Protected Disclosure Act 2012; Australian court means any of the following— (a) a Victorian court; (b) a court of another State; (c) a court of a Territory; (d) the High Court or another court of the Commonwealth; Board has the same meaning as in Part IIIAA of the Constitution Act 1975; coercive power means— (a) in relation to an investigating panel— (i) a power to require the officer concerned to undergo a medical examination under section 57; or (ii) a power of an investigating panel to require the production of any document or thing under section 69; or (iii) a power of an investigating panel to issue a witness summons; or (iv) a power of a member of an investigating panel to examine a person under oath or affirmation under section 78; or (v) the power to apply for a search warrant under section 84; or (b) in relation to the Judicial Commission, a power to require the officer concerned to undergo a medical examination under section 29; -- 11 of 169 -- Part 1—Preliminary Judicial Commission of Victoria Act 2016 No. 16 of 2016 4 Authorised by the Chief Parliamentary Counsel complaint means a complaint made under section 5 or 6; corrupt conduct has the meaning given by section 4 of the Independent Broad-based Anti-corruption Commission Act 2011; Court Services Victoria has the same meaning as in the Court Services Victoria Act 2014; Director means the Director of the Judicial Commission appointed by the Chief Executive Officer of Court Services Victoria under section 128; disclosure considerations has the meaning given by section 4; head of jurisdiction, in relation to a judicial officer or non-judicial member of VCAT, means a person who is a principal head of jurisdiction or an additional head of jurisdiction for that officer; IBAC means the Independent Broad-based Anti-corruption Commission established by section 12 of the Independent Broad-based Anti-corruption Commission Act 2011; IBAC personnel means— (a) an IBAC Officer within the meaning of section 3 of the Independent Broad- based Anti-corruption Commission Act 2011; or (b) a person who was formerly an IBAC Officer within the meaning of that Act; integrity body means a person or body specified in Schedule 1; investigating panel has the same meaning as in Part IIIAA of the Constitution Act 1975; -- 12 of 169 -- Part 1—Preliminary Judicial Commission of Victoria Act 2016 No. 16 of 2016 5 Authorised by the Chief Parliamentary Counsel Judicial Commission has the same meaning as in Part IIIAA of the Constitution Act 1975; Judicial Commission officer means— (a) a member or acting member of the Board; or (b) the Director or Acting Director of the Judicial Commission; or (c) an employee referred to in section 36 of the Court Services Victoria Act 2014 who provides assistance to the Judicial Commission, an investigating panel or the Director; or (d) a person engaged by the Judicial Commission under section 133; Judicial Commission report—see section 113; judicial member, of the Board, has the same meaning as in Part IIIAA of the Constitution Act 1975; judicial officer has the same meaning as in Part IIIAA of the Constitution Act 1975; law enforcement agency means— (a) Victoria Police; or (b) the Victorian WorkCover Authority within the meaning of the Workplace Injury Rehabilitation and Compensation Act 2013; or (c) the Environment Protection Authority established under section 5 of the Environment Protection Act 1970; or (d) the Australian Federal Police; or (e) the police force or police service (however described) of another State or Territory; or -- 13 of 169 -- Part 1—Preliminary Judicial Commission of Victoria Act 2016 No. 16 of 2016 6 Authorised by the Chief Parliamentary Counsel (f) a person or body of another State, a Territory or the Commonwealth that has functions corresponding to any or all of the functions of a body referred to in paragraph (b) or (c); or (g) any other prescribed person or body which has a law enforcement function; Law Institute means the Law Institute of Victoria Limited ACN 075 475 731; medical examination means any physical, psychological, psychiatric or other medical examination; medical test includes diagnostic imaging and any test that requires the provision by a person of blood, bodily fluids or human tissue; member, in relation to VCAT, has the same meaning as in section 3 of the Victorian Civil and Administrative Tribunal Act 1998; nominated head of jurisdiction means— (a) if the officer concerned is not a head of jurisdiction, the principal head of jurisdiction for that officer and, if an additional head of jurisdiction has been nominated under section 109, that additional head of jurisdiction; or (b) if the officer concerned is the President of VCAT, the Chief Justice; or (c) if the officer concerned is the President of the Children's Court or the State Coroner, the Chief Judge; nominated person means, if the officer concerned is the Chief Justice, the Chief Judge or the Chief Magistrate, the person who has been nominated under section 110; -- 14 of 169 -- Part 1—Preliminary Judicial Commission of Victoria Act 2016 No. 16 of 2016 7 Authorised by the Chief Parliamentary Counsel non-judicial member of VCAT means a member of VCAT who is not a judicial officer; officer concerned, in relation to a complaint or referral, means the judicial officer or non-judicial member of VCAT in respect of whom the complaint or referral is made; police gaol has the same meaning as in the Corrections Act 1986; police officer has the same meaning as in the Victoria Police Act 2013; principal head of jurisdiction means— (a) the Chief Justice for a judge (other than the Chief Justice), a reserve judge, an associate judge, a reserve associate judge or a judicial registrar of the Supreme Court; or (b) the Chief Judge for a judge (other than the Chief Judge), a reserve judge, an associate judge, a reserve associate judge or a judicial registrar of the County Court; or (c) the Chief Magistrate for a magistrate (other than the Chief Magistrate), a reserve magistrate or a judicial registrar of the Magistrates' Court; or (d) the President of the Children's Court for a judicial registrar of that court; or (e) the State Coroner for— (i) a judicial registrar of the Coroners Court; or (ii) a coroner who is not a judge of the County Court, a magistrate or a reserve magistrate; or -- 15 of 169 -- Part 1—Preliminary Judicial Commission of Victoria Act 2016 No. 16 of 2016 8 Authorised by the Chief Parliamentary Counsel (f) the President of VCAT for a non- judicial member of VCAT; prison means— (a) a prison within the meaning of section 3(1) of the Corrections Act 1986; or (b) a youth justice facility within the meaning of section 482A of the Children, Youth and Families Act 2005; privilege means— (a) any privilege that a person is entitled to claim in any proceedings before a court or tribunal, other than— (i) the privilege provided for in Division 1C of Part 3.10 of the Evidence Act 2008; or (ii) the privilege against self-incrimination; or (b) public interest immunity; protected disclosure complaint means a disclosure that the IBAC has determined under section 26 of the Protected Disclosure Act 2012 to be a protected disclosure complaint; referral means— (a) a referral by a head of jurisdiction under section 7; or (b) a referral by the Attorney-General under section 8; -- 16 of 169 -- Part 1—Preliminary Judicial Commission of Victoria Act 2016 No. 16 of 2016 9 Authorised by the Chief Parliamentary Counsel registered medical practitioner means a person registered under the Health Practitioner Regulation National Law to practise in the medical profession (other than a student); relevant council of judges means— (a) in relation to a judicial officer of the Supreme Court, the Council of the Judges within the meaning of section 28 of the Supreme Court Act 1986; or (b) in relation to a judicial officer of the County Court, the Council of the Judges within the meaning of section 87 of the County Court Act 1958; or (c) in relation to the Chief Magistrate, the Council of the magistrates within the meaning of section 15 of the Magistrates' Court Act 1989; staff of the Judicial Commission means— (a) employees referred to in section 36 of the Court Services Victoria Act 2014 who provide assistance to the Judicial Commission, an investigating panel or the Director; and (b) persons engaged by the Judicial Commission under section 133; vexatious complainant means a person in respect of whom a declaration under section 140 is in force; Victoria Police has the same meaning as in the Victoria Police Act 2013; -- 17 of 169 -- Part 1—Preliminary Judicial Commission of Victoria Act 2016 No. 16 of 2016 10 Authorised by the Chief Parliamentary Counsel Victorian Bar means Victorian Bar Inc, an association incorporated under the Associations Incorporation Reform Act 2012; Victorian court means any of the following— (a) the Supreme Court; (b) the County Court; (c) the Magistrates' Court; (d) the Children's Court; (e) the Coroners Court; Victorian Inspectorate has the same meaning as in the Victorian Inspectorate Act 2011; witness summons means a summons issued under section 70. (2) In this Act— (a) a reference to a function includes a reference to a power and a duty; and (b) a reference to the exercise of a function includes, where the function is a duty, a reference to the performance of the duty; and (c) a reference to the functions of a judicial officer or non-judicial member of VCAT includes a reference to any functions of an office to which the person is appointed or assigned or which the person holds including the following— (i) in the case of an appointment as head of jurisdiction, the functions as head of jurisdiction; (ii) in the case of an appointment or assignment of a judicial officer to another court or tribunal, any functions as a member of that court or tribunal. -- 18 of 169 -- Part 1—Preliminary Judicial Commission of Victoria Act 2016 No. 16 of 2016 11 Authorised by the Chief Parliamentary Counsel 4 Disclosure considerations In this Act, a reference to the disclosure considerations is a reference to the following— (a) ensuring a transparent and accountable process for investigating the performance of functions of judicial officers or non-judicial members of VCAT; (b) maintaining present and future public confidence in the Victorian courts, VCAT and the Victims of Crime Assistance Tribunal established under the Victims of Crime Assistance Act 1996; (c) protecting the privacy and safety of an individual; (d) preventing disruption to the orderly administration of justice. -- 19 of 169 -- Part 2—Complaints and referrals Judicial Commission of Victoria Act 2016 No. 16 of 2016 12 Authorised by the Chief Parliamentary Counsel Part 2—Complaints and referrals 5 Complaints A person may make a complaint to the Judicial Commission about the conduct or capacity of a judicial officer or a non-judicial member of VCAT. Note The guidelines made under section 134 may set out the procedure for making a complaint. 6 Complaints by professional bodies (1) The Law Institute may make a complaint to the Judicial Commission on behalf of a member of the Law Institute about the conduct or capacity of a judicial officer or a non-judicial member of VCAT. (2) The Victorian Bar may make a complaint to the Judicial Commission on behalf of a member of the Victorian Bar about the conduct or capacity of a judicial officer or a non-judicial member of VCAT. Note The guidelines made under section 134 may set out the procedure for a professional body making a complaint on behalf of a person. (3) The Law Institute or the Victorian Bar— (a) is not required to disclose the identity of the person on whose behalf a complaint is made under this section; and (b) is taken to be the complainant if the Law Institute or the Victorian Bar make a complaint under this section. -- 20 of 169 -- Part 2—Complaints and referrals Judicial Commission of Victoria Act 2016 No. 16 of 2016 13 Authorised by the Chief Parliamentary Counsel 7 Referrals by head of jurisdiction (1) A head of jurisdiction of a court may make a referral to the Judicial Commission about the conduct or capacity of a judicial officer of the court. (2) The President of VCAT may make a referral to the Judicial Commission about the conduct or capacity of a member of VCAT. Note The guidelines made under section 134 may set out the procedure for making a referral. 8 Referrals by Attorney-General The Attorney-General may make a referral to the Judicial Commission about the conduct or capacity of a judicial officer or a non-judicial member of VCAT. Note The guidelines made under section 134 may set out the procedure for making a referral. 9 Referrals by the IBAC (1) A complaint or notification to the IBAC or a matter that is referred to the Judicial Commission under section 73 or 74A of the Independent Broad-based Anti-corruption Commission Act 2011 is taken to be a complaint made to the Judicial Commission under section 5. (2) For the purposes of dealing with a complaint referred to in subsection (1), the following is taken to be the complainant— (a) in the case of a complaint to the IBAC, the person who made the complaint or, if the complaint is a protected disclosure complaint, the person who made the disclosure; -- 21 of 169 -- Part 2—Complaints and referrals Judicial Commission of Victoria Act 2016 No. 16 of 2016 14 Authorised by the Chief Parliamentary Counsel (b) in the case of a notification to the IBAC, the IBAC; (c) in the case of a matter that is referred under section 74A of the Independent Broad-based Anti-corruption Commission Act 2011, the IBAC. 10 Complaint or referral may be made despite other proceeding A complaint or referral may be made even though the matter is or has been— (a) the subject of an investigation by Victoria Police or any other law enforcement agency, an integrity body or other regulatory body; or (b) the subject of legal proceedings in an Australian court or a tribunal in Australia. 11 Notification to the IBAC does not affect complaint or referral A notification to the IBAC under section 21 of the Protected Disclosure Act 2012 of a complaint or referral made under this Act does not affect the following powers of the Judicial Commission or an investigating panel in respect of that complaint or referral— (a) the power of the Judicial Commission or an investigating panel to dismiss or refer the complaint or referral; (b) the power of the Judicial Commission or an investigating panel to provide a report in respect of that complaint or referral. -- 22 of 169 -- Part 2—Complaints and referrals Judicial Commission of Victoria Act 2016 No. 16 of 2016 15 Authorised by the Chief Parliamentary Counsel 12 Officer concerned not required to disqualify themselves from proceeding For the avoidance of doubt, the fact that a complaint or referral has been made or is made against a judicial officer or a non-judicial member of VCAT who is conducting a proceeding does not, of itself, require the officer concerned to disqualify themselves from the proceeding. -- 23 of 169 -- Part 3—Investigations by the Judicial Commission Judicial Commission of Victoria Act 2016 No. 16 of 2016 16 Authorised by the Chief Parliamentary Counsel Part 3—Investigations by the Judicial Commission Division 1—Procedure in investigating complaints and referrals by Judicial Commission 13 Outcome of consideration of matter by Judicial Commission (1) After considering a complaint or referral, the Judicial Commission must take action as set out in this section. (2) The Judicial Commission— (a) must dismiss the matter in whole or in part if section 16(1) applies; or (b) must dismiss the matter in whole or in part if section 16(2) or (3) applies; or (c) may dismiss the matter in whole or in part if section 16(4) applies. (3) If the Judicial Commission has not dismissed the matter under subsection (2), the Judicial Commission must refer the complaint or referral to an investigating panel if— (a) the Judicial Commission is of the opinion that the complaint or referral could, if substantiated, amount to proved misbehaviour or incapacity such as to warrant the removal of the officer; and (b) the Judicial Commission has given the officer concerned an opportunity to respond to the complaint or referral. (4) If the Judicial Commission has not dismissed the matter under subsection (2) or referred the matter to an investigating panel under subsection (3), the Judicial Commission must— -- 24 of 169 -- Part 3—Investigations by the Judicial Commission Judicial Commission of Victoria Act 2016 No. 16 of 2016 17 Authorised by the Chief Parliamentary Counsel (a) give the officer concerned an opportunity to respond to the matter; and (b) refer the matter to the nominated head of jurisdiction or nominated person for the officer concerned in accordance with section 19. 14 Officer concerned to be given opportunity to respond if matter to be referred (1) Before referring a matter to an investigating panel under section 13(3) or to the nominated head of jurisdiction or nominated person for the officer concerned under section 13(4), the Judicial Commission must give the officer concerned an opportunity to respond to the complaint or referral. (2) For the purposes of subsection (1), the Judicial Commission must give the officer concerned written notice specifying— (a) that a complaint has been made against the officer; and (b) the details of the complaint or referral; and (c) that the Judicial Commission is considering its options for the purposes of dealing with the complaint or referral which include referring the complaint or referral to— (i) an investigating panel; or (ii) the head of jurisdiction or nominated person for the officer concerned; and (d) that the officer concerned may respond to the complaint or referral; and (e) the date by when, or period of time within which, a response to the complaint or referral may be made and the manner in which any such response may be given. -- 25 of 169 -- Part 3—Investigations by the Judicial Commission Judicial Commission of Victoria Act 2016 No. 16 of 2016 18 Authorised by the Chief Parliamentary Counsel 15 Consultation with head of jurisdiction (1) Before referring a complaint or referral to a nominated head of jurisdiction or nominated person under section 13(4), the Judicial Commission must consult with any nominated head of jurisdiction or any nominated person for the officer concerned. (2) The Judicial Commission may consult with a head of jurisdiction for the officer concerned in determining whether to make any other decision in relation to, or otherwise deal with, a complaint or referral. 16 Dismissal of complaints and referrals by Judicial Commission (1) The Judicial Commission must dismiss a complaint or referral, in whole or in part, unless the Judicial Commission is satisfied— (a) the matter could, if substantiated, amount to proved misbehaviour or incapacity of the officer concerned such as to warrant the removal of the officer from office; or (b) the matter warrants further consideration on the ground that— (i) the matter may affect or have affected the performance of the officer's functions; or (ii) the conduct of the officer may have infringed the standards of conduct generally expected of judicial officers or non-judicial members of VCAT (as the case requires). (2) The Judicial Commission must dismiss a complaint or referral if— (a) the complaint is made by a vexatious complainant; or -- 26 of 169 -- Part 3—Investigations by the Judicial Commission Judicial Commission of Victoria Act 2016 No. 16 of 2016 19 Authorised by the Chief Parliamentary Counsel (b) the complaint or referral does not relate to a judicial officer or non-judicial member of VCAT. (3) The Judicial Commission must dismiss a complaint or referral in whole or in part if the Judicial Commission is satisfied that— (a) the matter relates to conduct of the officer concerned alleged to have taken place before the officer was appointed as a judicial officer or non-judicial member of VCAT, being conduct that, if substantiated, could not amount to proved misbehaviour or incapacity such as to warrant the removal of the officer from office; or (b) the matter relates solely to the merits or lawfulness of a decision or procedural ruling made by the officer concerned; or (c) the matter relates to the private life of the officer concerned and, if substantiated, could not be reasonably considered to affect or have affected— (i) the performance of the officer's functions; or (ii) the suitability of the officer to hold office as a judicial officer or non-judicial member of VCAT; or (d) in the case of a complaint, the complaint is frivolous, vexatious or not made in good faith; or (e) the officer concerned has resigned or retired and is no longer a judicial officer or non-judicial member of VCAT. (4) The Judicial Commission may dismiss a complaint or referral in whole or in part if the Judicial Commission is satisfied that— -- 27 of 169 -- Part 3—Investigations by the Judicial Commission Judicial Commission of Victoria Act 2016 No. 16 of 2016 20 Authorised by the Chief Parliamentary Counsel (a) the complaint or referral has not been substantiated; or (b) the matter occurred at too remote a time to justify further consideration; or (c) having regard to all the circumstances of the case, investigation or further investigation of the complaint or referral is unnecessary or unjustified. 17 Withdrawal of complaints and referrals (1) Subject to subsection (3), a person may seek to withdraw a complaint or referral at any time. (2) Subject to subsection (3), if a person seeks to withdraw a complaint or referral, the Judicial Commission may— (a) take no further action on the complaint or referral; or (b) if satisfied that it is in the public interest, continue to investigate the complaint or referral, despite the person seeking to withdraw it. (3) The following complaints and referrals must not be withdrawn— (a) a complaint that is a protected disclosure complaint; (b) a complaint or referral that has been referred to an investigating panel under section 13(3); (c) a complaint or referral referred to a nominated head of jurisdiction or nominated person under section 13(4). -- 28 of 169 -- Part 3—Investigations by the Judicial Commission Judicial Commission of Victoria Act 2016 No. 16 of 2016 21 Authorised by the Chief Parliamentary Counsel 18 Judicial Commission must adjourn investigation of certain complaints or referrals (1) Subject to subsection (2), the Judicial Commission must adjourn the investigation of a complaint or referral or part of the complaint or referral if the Judicial Commission is satisfied that it relates to a court or VCAT proceeding— (a) that is being heard by the officer concerned; or (b) in which a judgment or decision of the officer concerned has not been handed down. (2) The Judicial Commission may investigate a complaint or referral referred to in subsection (1) if— (a) the matter that relates to the proceeding relates solely to a delay by the officer concerned in handing down a decision in the proceeding; or (b) having regard to the seriousness of the matter and the urgency with which it must be dealt with, the principal head of jurisdiction agrees it is appropriate that the Judicial Commission deal with the matter. (3) Subsection (1) does not prevent the Judicial Commission— (a) dismissing the complaint or referral under section 13(2); or (b) notifying the IBAC or the Victorian Inspectorate under Division 3 of the subject matter of the complaint or referral. (4) The IBAC may at any time require by notice to the Judicial Commission the adjournment of an investigation of a complaint or referral by the Judicial Commission if the IBAC considers that adjournment of the investigation by the Judicial -- 29 of 169 -- Part 3—Investigations by the Judicial Commission Judicial Commission of Victoria Act 2016 No. 16 of 2016 22 Authorised by the Chief Parliamentary Counsel Commission is necessary having regard to the objects of the Independent Broad-based Anti-corruption Commission Act 2011 and the functions of the IBAC. (5) The Judicial Commission may resume an investigation that has been adjourned under subsection (4) if— (a) the IBAC determines that the adjournment of the investigation by the Judicial Commission is no longer necessary; or (b) the IBAC dismisses, completes or discontinues its investigation; or (c) the IBAC and the Judicial Commission agree that the Judicial Commission may investigate some or all aspects of the matter. (6) The IBAC must notify the Judicial Commission as soon as practicable if the IBAC has made a determination specified in subsection (5)(a) or dismissed, completed or discontinued an investigation that the Judicial Commission was required to adjourn under subsection (4). 19 Referral to investigating panel, nominated head of jurisdiction or nominated person (1) In referring a matter to an investigating panel under section 13(3), the Judicial Commission must provide the investigating panel with any information or documents that the Judicial Commission considers may assist the investigating panel to deal with the matter. (2) If, after the referral of the matter to the investigating panel, any further information or documents come into the possession of the Judicial Commission that the Judicial Commission considers would assist the investigating panel to deal with the matter, the Judicial Commission -- 30 of 169 -- Part 3—Investigations by the Judicial Commission Judicial Commission of Victoria Act 2016 No. 16 of 2016 23 Authorised by the Chief Parliamentary Counsel must provide that information or those documents to the investigating panel. (3) In referring a matter to the nominated head of jurisdiction or nominated person of the officer concerned under section 13(4), the Judicial Commission must provide— (a) a report that sets out— (i) the findings of fact of the Judicial Commission in the matter; and (ii) the Judicial Commission's assessment of the appropriateness of the conduct that is the subject of the matter; and (iii) the Judicial Commission's recommendations in relation to the future conduct of the officer concerned; and (b) any information that the Judicial Commission has that it considers may assist the nominated head of jurisdiction or nominated person to deal with the matter. Division 2—Notifications by Judicial Commission 20 Notification of head of jurisdiction (1) The Judicial Commission must give the head of jurisdiction of the officer concerned written notice of the dismissal of a complaint or referral under section 13(2). (2) A notice under subsection (1) must include the reasons for dismissal of the complaint or referral. (3) The Judicial Commission must give the head of jurisdiction of the officer concerned written notice of a referral of a matter to an investigating panel under section 13(3). -- 31 of 169 -- Part 3—Investigations by the Judicial Commission Judicial Commission of Victoria Act 2016 No. 16 of 2016 24 Authorised by the Chief Parliamentary Counsel (4) If the Judicial Commission gives a nominated head of jurisdiction a report under section 19(3), the Judicial Commission must give a copy of the report to any other head of jurisdiction of the officer concerned. 21 Notification of officer concerned (1) The Judicial Commission must give the officer concerned written notice of the dismissal of a complaint or referral under section 13(2). (2) A notice under subsection (1) must include the reasons for dismissal of the complaint or referral. (3) The Judicial Commission must give the officer concerned— (a) written notice of the referral of a matter to an investigating panel under section 13(3); and (b) copies of any information or documents provided to an investigating panel under section 19(1). (4) The Judicial Commission must give the officer concerned a copy of a report given under section 19(3). 22 Notification of Attorney-General (1) The Judicial Commission must give the Attorney-General written notice of the dismissal under section 13(2) of a referral by the Attorney-General. (2) A notice under subsection (1) must include the reasons for dismissal of the complaint or referral. (3) The Judicial Commission must give the Attorney-General written notice of a referral of a matter to an investigating panel under section 13(3). -- 32 of 169 -- Part 3—Investigations by the Judicial Commission Judicial Commission of Victoria Act 2016 No. 16 of 2016 25 Authorised by the Chief Parliamentary Counsel (4) The Judicial Commission must give the Attorney-General written notice of a referral of a matter to the head of jurisdiction or nominated person for the officer concerned under section 13(4) if the matter was referred to the Judicial Commission by the Attorney-General. (5) A notice under subsection (4) must— (a) state that the Judicial Commission has referred the matter to the nominated head of jurisdiction or nominated person; and (b) include the reasons for making the referral. (6) Information must not be disclosed to the Attorney-General under subsection (2) or (5)(b) if disclosure of that information would be contrary to the public interest having regard to the disclosure considerations. 23 Notification of complainant (1) The Judicial Commission must give the complainant written notice of the dismissal of a complaint under section 13(2). (2) A notice under subsection (1) must include the reasons for dismissal of the complaint or referral. (3) The Judicial Commission must give the complainant written notice of a referral made under section 13(3) in relation to a complaint. (4) The Judicial Commission must give the complainant written notice of a referral made under section 13(4) in relation to a complaint. (5) A notice under subsection (4) must— (a) state that the Judicial Commission has referred the matter to the nominated head of jurisdiction or nominated person; and (b) include the reasons for making the referral. -- 33 of 169 -- Part 3—Investigations by the Judicial Commission Judicial Commission of Victoria Act 2016 No. 16 of 2016 26 Authorised by the Chief Parliamentary Counsel (6) Information must not be disclosed to a complainant under subsection (2) or (5)(b) if disclosure of that information would be contrary to the public interest having regard to the disclosure considerations. 24 Content of notice relating to assessable disclosures The Judicial Commission must not include in a notice under section 14 or this Division any information that— (a) is likely to lead to the identification of a person who has made an assessable disclosure; and (b) is not information to which section 53(2)(a), (c) or (d) of the Protected Disclosure Act 2012 applies. Division 3—Notifications to the IBAC and the Victorian Inspectorate 25 Mandatory notification of corrupt conduct to the IBAC (1) Subject to any exemption notice issued under section 57B of the Independent Broad-based Anti-corruption Commission Act 2011, the Judicial Commission must notify the IBAC of any matter of which the Judicial Commission becomes aware in the performance of functions under this Act or any other Act that the Judicial Commission suspects on reasonable grounds involves corrupt conduct occurring or having occurred. (2) For the purposes of deciding whether to notify the IBAC under this section, the Judicial Commission may consult the IBAC. -- 34 of 169 -- Part 3—Investigations by the Judicial Commission Judicial Commission of Victoria Act 2016 No. 16 of 2016 27 Authorised by the Chief Parliamentary Counsel 26 Mandatory notification to the Victorian Inspectorate The Judicial Commission must notify the Victorian Inspectorate of any matter of which it becomes aware in the performance of functions under this Act or any other Act that— (a) appears to involve— (i) misconduct of or in relation to the IBAC or IBAC personnel; or (ii) misconduct (other than corrupt conduct) of an Ombudsman officer within the meaning of the Ombudsman Act 1973, a VAGO officer within the meaning of the Audit Act 1994, or the Chief Examiner or an Examiner within the meaning of the Major Crime (Investigative Powers) Act 2004; and (b) appears to be relevant to the functions of the Victorian Inspectorate. Division 4—General powers and procedures of Judicial Commission 27 Request for further information (1) The Judicial Commission may request a person who has made a complaint— (a) to give further information about the complaint or produce any document relevant to the complaint; and (b) to verify the complaint or any further information or document provided under paragraph (a)— -- 35 of 169 -- Part 3—Investigations by the Judicial Commission Judicial Commission of Victoria Act 2016 No. 16 of 2016 28 Authorised by the Chief Parliamentary Counsel (i) by statutory declaration; or (ii) in any other manner specified by the Judicial Commission. (2) The Judicial Commission may request a person who has made a referral to give further information about the referral or produce any document relevant to the referral. (3) The Judicial Commission may take a statutory declaration from any person. (4) A request for verification, further information or to produce a document under subsection (1) or (2) must be given in writing and allow a reasonable time for compliance. 28 Powers as to court or tribunal documents (1) For the purposes of investigating a complaint or referral, the Judicial Commission may request a Victorian court or VCAT to provide the following to the Judicial Commission— (a) a copy of a transcript or recording of a hearing in the court or VCAT that is relevant to the matter; (b) a copy of a court or tribunal file or any other document relating to a proceeding in the court or VCAT that is in the possession or control of the court or VCAT that is relevant to the matter. (2) A Victorian court or VCAT is authorised to and may disclose information to the Judicial Commission if the Judicial Commission requests that information under subsection (1). (3) A Victorian court or VCAT must provide reasons for not complying with a request under subsection (1). -- 36 of 169 -- Part 3—Investigations by the Judicial Commission Judicial Commission of Victoria Act 2016 No. 16 of 2016 29 Authorised by the Chief Parliamentary Counsel 29 Requirement to undergo medical examination (1) For the purpose of investigating a matter under this Part, the Judicial Commission may require the officer concerned— (a) to undergo any medical examination by a registered medical practitioner that the Judicial Commission considers necessary; and (b) to provide a copy of any report of any medical examination undertaken under paragraph (a). (2) The Judicial Commission must not impose a requirement under subsection (1) unless it reasonably believes— (a) that the officer concerned may be suffering from an impairment, disability, illness or condition that may significantly affect the officer's performance of their functions; and (b) that the requirement is appropriate in all the circumstances. (3) A requirement under subsection (1) must be in writing and must specify— (a) the nature of the examination; and (b) the medical practitioner or class of medical practitioner who is to carry out the examination; and (c) a time limit within which the examination must take place. (4) A person must not, without reasonable excuse, fail to comply with a requirement of the Judicial Commission under subsection (1). -- 37 of 169 -- Part 3—Investigations by the Judicial Commission Judicial Commission of Victoria Act 2016 No. 16 of 2016 30 Authorised by the Chief Parliamentary Counsel 30 Effect of failure to undergo medical examination In forming an opinion under section 13(3), the Judicial Commission may have regard to— (a) any failure by the officer concerned, without reasonable excuse, to comply with— (i) a requirement under section 29(1); or (ii) a request by a registered medical practitioner under section 106 to undergo a medical test; and (b) any other relevant factors. Note See Division 3 of Part 6 for the process for medical examinations. 31 Power to adjourn investigation The Judicial Commission may adjourn the conduct of an investigation under this Part— (a) if the matter is the subject of an investigation being conducted by a law enforcement agency, a regulatory body or an integrity body; or (b) if the matter arose out of or is the subject of a current legal proceeding in any Australian court or a tribunal in Australia; or (c) for any other appropriate reason. Note The Judicial Commission may be required to adjourn the investigation of a matter. See section 18(4). 32 Considerations when matter the subject of other investigation or legal proceedings (1) If, in investigating a matter under this Part, the Judicial Commission is or becomes aware that the matter is the subject of an investigation being conducted by a law enforcement agency, regulatory body or an integrity body, the Judicial -- 38 of 169 -- Part 3—Investigations by the Judicial Commission Judicial Commission of Victoria Act 2016 No. 16 of 2016 31 Authorised by the Chief Parliamentary Counsel Commission must take reasonable steps to reduce the likelihood that the conduct of the investigation by the Judicial Commission may prejudice the investigation by the law enforcement agency, regulatory body or integrity body. (2) If, in investigating a matter under this Part, the Judicial Commission is or becomes aware of a proceeding referred to in section 31(b), the Judicial Commission must take reasonable steps to reduce the likelihood that the conduct of the investigation by the Judicial Commission may prejudice that proceeding. -- 39 of 169 -- Part 4—Investigations by an investigating panel Judicial Commission of Victoria Act 2016 No. 16 of 2016 32 Authorised by the Chief Parliamentary Counsel Part 4—Investigations by an investigating panel Division 1—Investigating panel procedure 33 Role of investigating panel The role of an investigating panel is to investigate a matter referred to it by the Judicial Commission which could, if substantiated, amount to proved misbehaviour or incapacity such as to warrant the removal of an officer concerned from office. 34 Outcome of investigating panel investigation (1) After investigating a matter, an investigating panel must take action as set out in this section. (2) An investigating panel— (a) must dismiss the matter if section 35(1) applies; or (b) must dismiss the matter in whole or in part if section 35(2) or (3) applies; or (c) may dismiss the matter in whole or in part if section 35(4) applies. (3) An investigating panel may refer a matter to the nominated head of jurisdiction or nominated person for the officer concerned if the investigating panel— (a) has not dismissed the matter under subsection (2); or (b) has not reported the matter to the Governor under subsection (4); or (c) has not reported the matter to the Attorney-General under subsection (5). -- 40 of 169 -- Part 4—Investigations by an investigating panel Judicial Commission of Victoria Act 2016 No. 16 of 2016 33 Authorised by the Chief Parliamentary Counsel (4) An investigating panel may prepare a report for the Governor and give a copy of that report to the Attorney-General under section 39 in respect of a judicial officer if the investigating panel forms the opinion that facts exist that could warrant the removal of that judicial officer on the grounds of misbehaviour or incapacity. (5) An investigating panel may prepare a report for the Attorney-General in respect of a non-judicial member of VCAT if the investigating panel forms the opinion that facts exist that could warrant the removal of that VCAT member on the grounds of misbehaviour or incapacity. 35 Dismissal of complaints and referrals by investigating panel (1) An investigating panel must dismiss a complaint or referral if— (a) the complaint is made by a vexatious complainant; or (b) the complaint or referral does not relate to a judicial officer or non-judicial member of VCAT. (2) An investigating panel must dismiss a complaint or referral in whole or in part if the investigating panel is satisfied that— (a) the matter relates to conduct of the officer concerned alleged to have taken place before the officer was appointed as a judicial officer or non-judicial member of VCAT, being conduct that, if substantiated, could not amount to proved misbehaviour or incapacity such as to warrant the removal of the officer from office; or (b) the matter relates solely to the merits or lawfulness of a decision or procedural ruling made by the officer concerned; or -- 41 of 169 -- Part 4—Investigations by an investigating panel Judicial Commission of Victoria Act 2016 No. 16 of 2016 34 Authorised by the Chief Parliamentary Counsel (c) the matter relates to the private life of the officer concerned and, if substantiated, could not be reasonably considered to affect or have affected— (i) the performance of the officer's functions; or (ii) the suitability of the officer to hold office as a judicial officer or non- judicial member of VCAT; or (d) in the case of a complaint, the complaint is frivolous, vexatious or not made in good faith; or (e) the officer concerned has resigned or retired and is no longer a judicial officer or non-judicial member of VCAT. (3) An investigating panel must dismiss a complaint or referral in whole or in part if the investigating panel is satisfied that— (a) the matter occurred at too remote a time to justify further consideration; or (b) having regard to all the circumstances of the case, investigation or further investigation of the complaint or referral is unnecessary or unjustified. (4) An investigating panel may dismiss a complaint or referral if the investigating panel is satisfied that the complaint or referral has not been substantiated. 36 An investigating panel must adjourn investigation of certain complaints or referrals (1) Subject to subsection (2), an investigating panel must adjourn the investigation of a complaint or referral or part of the complaint or referral if the investigating panel is satisfied that it relates to a court or VCAT proceeding— -- 42 of 169 -- Part 4—Investigations by an investigating panel Judicial Commission of Victoria Act 2016 No. 16 of 2016 35 Authorised by the Chief Parliamentary Counsel (a) that is being heard by the officer concerned; or (b) in which a judgment or decision of the officer concerned has not been handed down. (2) An investigating panel may investigate a complaint or referral referred to in subsection (1) if— (a) the matter that relates to the proceeding relates solely to a delay by the officer concerned in handing down a decision in the proceeding; or (b) having regard to the seriousness of the matter and the urgency with which it must be dealt with, the principal head of jurisdiction agrees it is appropriate that the investigating panel deal with the matter. (3) Subsection (1) does not prevent an investigating panel— (a) dismissing the complaint or referral under section 34(2); or (b) notifying the IBAC or the Victorian Inspectorate under Division 2 of the subject matter of the complaint or referral. 37 Constitution of an investigating panel for making decisions (1) The decision of an investigating panel on what action to take in relation to a complaint or referral it is investigating may be made by a majority of the members of the investigating panel as constituted for the complaint or referral. (2) A report of an investigating panel may include a majority report and a minority report. -- 43 of 169 -- Part 4—Investigations by an investigating panel Judicial Commission of Victoria Act 2016 No. 16 of 2016 36 Authorised by the Chief Parliamentary Counsel (3) If a member of the investigating panel becomes unavailable or unable to perform the functions of a member, or ceases to be a member under section 87AAY(1)(i), (j) or (k) of the Constitution Act 1975, or is removed as a member, the investigating panel may— (a) continue the investigation of the complaint or referral with 2 members; or (b) request the Judicial Commission to appoint a replacement member. (4) If an investigating panel continues the investigation of a complaint or referral with only 2 panel members in accordance with subsection (3)(a), the decision of the investigating panel on what action to take must be unanimous. 38 Consultation with head of jurisdiction (1) Before referring a complaint or referral to a nominated head of jurisdiction or nominated person under section 34(3), an investigating panel must consult with any nominated head of jurisdiction or any nominated person for the officer concerned. (2) The investigating panel may consult with a head of jurisdiction of the officer concerned in determining whether to make any other decision in relation to, or otherwise deal with, a complaint or referral. 39 Report to Governor (1) A report of an investigating panel to the Governor under section 34(4) must— (a) report on the conduct and findings of the investigation by the investigating panel; and (b) state the investigating panel's conclusion as to whether facts exist that could amount to proved misbehaviour or incapacity such as to -- 44 of 169 -- Part 4—Investigations by an investigating panel Judicial Commission of Victoria Act 2016 No. 16 of 2016 37 Authorised by the Chief Parliamentary Counsel warrant the removal of the officer concerned from office. (2) The investigating panel must give a copy of the report to the Attorney-General. (3) The Attorney-General must cause a copy of the report to be laid before each House of the Parliament as soon as reasonably practicable after receiving it. 40 Report to Attorney-General (1) A report of an investigating panel to the Attorney-General under section 34(5) must— (a) report on the conduct and findings of the investigation by the investigating panel; and (b) state the investigating panel's conclusion as to whether facts exist that could amount to proved misbehaviour or incapacity such as to warrant the removal of the officer concerned from office. (2) The Attorney-General must cause a copy of the report to be laid before each House of the Parliament as soon as reasonably practicable after receiving it. 41 Referral to nominated head of jurisdiction or nominated person In referring a matter to the nominated head of jurisdiction or nominated person of the officer concerned under section 34(3), an investigating panel must provide— (a) a report that sets out— (i) the findings of fact of the investigating panel in the matter; and (ii) the investigating panel's assessment of the appropriateness of the conduct that is the subject of the matter; and -- 45 of 169 -- Part 4—Investigations by an investigating panel Judicial Commission of Victoria Act 2016 No. 16 of 2016 38 Authorised by the Chief Parliamentary Counsel (iii) the investigating panel's recommendations in relation to the future conduct of the officer concerned; and (b) any information that the investigating panel has that it considers may assist the nominated head of jurisdiction or nominated person to deal with the matter. 42 Requirements before making a report (1) Before making a report to the Governor under section 34(4) or to the Attorney-General under section 34(5), an investigating panel must— (a) hold a hearing under Division 2 of Part 5; or (b) by written notice, give the officer concerned an opportunity to make written submissions to the investigating panel. (2) Written notice under subsection (1)(b) must— (a) specify the time within which any submissions must be made to the investigating panel; and (b) advise the officer concerned of the grounds on which the complaint or referral was made. (3) The time specified under subsection (2)(a) must be— (a) at least 21 days after the date of the notice; or (b) any shorter time agreed to by the officer concerned. 43 Notification of officer concerned and Judicial Commission (1) An investigating panel must give the officer concerned written notice of the dismissal of a complaint or referral under section 34(2). -- 46 of 169 -- Part 4—Investigations by an investigating panel Judicial Commission of Victoria Act 2016 No. 16 of 2016 39 Authorised by the Chief Parliamentary Counsel (2) A notice under subsection (1) must include the reasons for dismissal of the complaint or referral. (3) An investigating panel must give the officer concerned written notice of any report prepared by the investigating panel under section 34(4) or (5). (4) An investigating panel must give the officer concerned a copy of a report under section 41. (5) An investigating panel must give the Judicial Commission— (a) written notice of the outcome of an investigation it has conducted; and (b) copies of any reports or notifications it has given; and (c) at the conclusion of an investigation, all documents in the possession of the investigating panel that relate to the investigation. 44 Notification of head of jurisdiction (1) An investigating panel must give the head of jurisdiction of the officer concerned written notice of the dismissal of a complaint or referral under section 34(2). (2) A notice under subsection (1) must include the reasons for dismissal of the complaint or referral. (3) An investigating panel must give the head of jurisdiction of the officer concerned written notice of any report prepared by the investigating panel under section 34(4) or (5). (4) An investigating panel must give a copy of a report under section 41 to any other head of jurisdiction of the officer concerned. -- 47 of 169 -- Part 4—Investigations by an investigating panel Judicial Commission of Victoria Act 2016 No. 16 of 2016 40 Authorised by the Chief Parliamentary Counsel 45 Notification of Attorney-General (1) An investigating panel must give the Attorney-General written notice of the dismissal of a complaint or referral under section 34(2). (2) A notice under subsection (1) must include the reasons for the decision. (3) An investigating panel must give the Attorney-General written notice of a referral made under section 34(3) in relation to a complaint or referral. (4) A notice under subsection (3) must— (a) state that the investigating panel has referred the matter to the nominated head of jurisdiction or nominated person; and (b) include the reasons for making the referral. (5) Information must not be disclosed to the Attorney-General under subsection (2) or (4)(b) if disclosure of that information would be contrary to the public interest having regard to the disclosure considerations. 46 Notification of complainant (1) An investigating panel must give the complainant written notice of the dismissal of a complaint under section 34(2). (2) A notice under subsection (1) must include the reasons for the decision. (3) An investigating panel must give the complainant written notice of a referral made under section 34(3) in relation to a complaint. -- 48 of 169 -- Part 4—Investigations by an investigating panel Judicial Commission of Victoria Act 2016 No. 16 of 2016 41 Authorised by the Chief Parliamentary Counsel (4) A notice under subsection (3) must— (a) state that the investigating panel has referred the matter to the nominated head of jurisdiction or nominated person; and (b) include the reasons for making the referral. (5) An investigating panel must give the complainant written notice of any report prepared under section 34(4) or (5) in relation to the complaint. (6) Information must not be disclosed to a complainant under subsection (2) or (4)(b) if disclosure of that information would be contrary to the public interest having regard to the disclosure considerations. 47 Content of notice relating to assessable disclosures An investigating panel must not include in any notice or report under this Division any information that— (a) is likely to lead to the identification of a person who has made an assessable disclosure; and (b) is not information to which section 53(2)(a), (c) or (d) of the Protected Disclosure Act 2012 applies. Division 2—Notifications to the IBAC and the Victorian Inspectorate 48 Notification to the IBAC by an investigating panel (1) Subject to subsection (2), an investigating panel may notify the IBAC of any matter of which it becomes aware in the performance of functions under this Act or any other Act that the investigating panel suspects on reasonable grounds involves corrupt conduct occurring or having occurred. -- 49 of 169 -- Part 4—Investigations by an investigating panel Judicial Commission of Victoria Act 2016 No. 16 of 2016 42 Authorised by the Chief Parliamentary Counsel (2) If an investigating panel suspects on reasonable grounds that a matter involves corrupt conduct occurring or having occurred under subsection (1), the investigating panel must notify the IBAC of the matter— (a) at the conclusion of the investigating panel's investigation; and (b) before the investigating panel gives a report on the conduct and findings, and any conclusions, of the investigation to the Governor, the head of jurisdiction or the Attorney-General. 49 Notification to the Victorian Inspectorate by an investigating panel An investigating panel may notify the Victorian Inspectorate of any matter of which it becomes aware in the performance of functions under this Act or any other Act that— (a) appears to involve— (i) misconduct of or in relation to the IBAC or IBAC personnel; or (ii) misconduct (other than corrupt conduct) of an Ombudsman officer within the meaning of the Ombudsman Act 1973, a VAGO officer within the meaning of the Audit Act 1994, or the Chief Examiner or an Examiner within the meaning of the Major Crime (Investigative Powers) Act 2004; and (b) appears to be relevant to the functions of the Victorian Inspectorate. -- 50 of 169 -- Part 4—Investigations by an investigating panel Judicial Commission of Victoria Act 2016 No. 16 of 2016 43 Authorised by the Chief Parliamentary Counsel 50 Extension or referral of matter (1) If, in investigating a matter under this Part, a matter arises (not being the matter that is the subject of the investigation) that could, in relation to the officer concerned, be a matter referred under section 7 or 8, the investigating panel may extend the investigation to cover that matter. (2) If, in investigating a matter under this Part, a matter arises that could, in relation to a judicial officer or non-judicial member of VCAT who is not the subject of the investigation, be a matter to be referred under section 7 or 8, the investigating panel must refer the matter to the Judicial Commission to be dealt with as if it were a referral by— (a) in the case of a judicial officer who is a head of jurisdiction, the Attorney-General; or (b) in the case of a judicial officer or non-judicial member of VCAT who is not a head of jurisdiction, the principal head of jurisdiction of the officer. -- 51 of 169 -- Part 5—Investigation powers and procedures Judicial Commission of Victoria Act 2016 No. 16 of 2016 44 Authorised by the Chief Parliamentary Counsel Part 5—Investigation powers and procedures Division 1—General powers and procedures of investigating panels 51 Investigating panel proceedings Subject to this Act, an investigating panel may regulate its own proceedings. 52 General requirements In investigating a complaint or referral, including in a hearing under Division 2— (a) an investigating panel is bound by the rules of natural justice; and (b) an investigating panel is not bound by the rules of evidence; and (c) an investigating panel may inform itself and otherwise deal with the complaint or referral in any matter that the investigating panel reasonably thinks fit; and (d) to the extent that proper consideration of the matters before an investigating panel permits, the investigating panel must— (i) act expeditiously; and (ii) subject to section 62, act confidentially. 53 Investigating panel may engage Australian lawyer to assist An investigating panel may engage an Australian lawyer to assist the investigating panel. -- 52 of 169 -- Part 5—Investigation powers and procedures Judicial Commission of Victoria Act 2016 No. 16 of 2016 45 Authorised by the Chief Parliamentary Counsel 54 Request for further information (1) An investigating panel may request a person who has made a complaint— (a) to give further information about the complaint or produce any document relevant to the complaint; and (b) to verify the complaint or any further information or document provided under paragraph (a)— (i) by statutory declaration; or (ii) in any other manner specified by the investigating panel. (2) An investigating panel may request a person who has made a referral to give further information about the referral or produce any document relevant to the referral. (3) An investigating panel may take a statutory declaration from any person. (4) A request for verification, further information or to produce a document under subsection (1) or (2) must be given in writing and allow a reasonable time for compliance. 55 Hearings and written submissions For the purposes of investigating a complaint or referral under this Part, an investigating panel may— (a) hold a hearing under Division 2; and (b) receive written submissions from the officer concerned, whether or not it holds a hearing. -- 53 of 169 -- Part 5—Investigation powers and procedures Judicial Commission of Victoria Act 2016 No. 16 of 2016 46 Authorised by the Chief Parliamentary Counsel 56 Powers as to court or tribunal documents (1) For the purposes of investigating a complaint or referral, an investigating panel may request a Victorian court or VCAT to provide the following to the investigating panel— (a) a copy of a transcript or recording of a hearing in the court or VCAT that is relevant to the matter; (b) a copy of a court or tribunal file or any other document relating to a proceeding in the court or VCAT that is in the possession or control of the court or VCAT that is relevant to the matter. (2) A Victorian court or VCAT is authorised to and may disclose information to an investigating panel if the investigating panel requests that information under subsection (1). (3) A Victorian court or VCAT must provide reasons for not complying with a request under subsection (1). 57 Requirement to undergo medical examination (1) For the purpose of investigating a matter under this Part, an investigating panel may require the officer concerned— (a) to undergo any medical examination by a registered medical practitioner that the investigating panel considers necessary; and (b) to provide a copy of any report of any medical examination undertaken under paragraph (a). (2) An investigating panel must not impose a requirement under subsection (1) unless it reasonably believes— -- 54 of 169 -- Part 5—Investigation powers and procedures Judicial Commission of Victoria Act 2016 No. 16 of 2016 47 Authorised by the Chief Parliamentary Counsel (a) that the officer concerned may be suffering from an impairment, disability, illness or condition that may significantly affect the officer's performance of their functions; and (b) that the requirement is appropriate in all the circumstances. (3) A requirement under subsection (1) must be in writing and must specify— (a) the nature of the examination; and (b) the medical practitioner or class of medical practitioner who is to carry out the examination; and (c) a time limit within which the examination must take place. (4) A person must not, without reasonable excuse, fail to comply with a requirement of an investigating panel under subsection (1). 58 Effect of failure to undergo medical examination In forming an opinion under section 34(4) or (5), an investigating panel may have regard to— (a) any failure by the officer concerned, without reasonable excuse, to comply with— (i) a requirement under section 57(1); or (ii) a request by a registered medical practitioner under section 106 to undergo a medical test; and (b) any other relevant factors. Note See Division 3 of Part 6 for the process for medical examinations. -- 55 of 169 -- Part 5—Investigation powers and procedures Judicial Commission of Victoria Act 2016 No. 16 of 2016 48 Authorised by the Chief Parliamentary Counsel 59 Power to adjourn investigation An investigating panel may adjourn the conduct of an investigation under this Part— (a) if the matter is the subject of an investigation being conducted by a law enforcement agency, a regulatory body or an integrity body; or (b) if the matter arose out of or is the subject of a current legal proceeding in any Australian court or a tribunal in Australia; or (c) for any other appropriate reason. 60 Considerations when matter the subject of other investigation or legal proceedings (1) If, in investigating a matter under this Part, an investigating panel is or becomes aware that the matter is the subject of an investigation being conducted by a law enforcement agency, a regulatory body or an integrity body, the investigating panel must take reasonable steps to reduce the likelihood that the conduct of the investigation by the investigating panel may prejudice the investigation by the law enforcement agency, regulatory body or integrity body. (2) If, in investigating a matter under this Part, an investigating panel is or becomes aware of a proceeding referred to in section 59(b), the investigating panel must take reasonable steps to reduce the likelihood that the conduct of the investigation by the investigating panel may prejudice that proceeding. -- 56 of 169 -- Part 5—Investigation powers and procedures Judicial Commission of Victoria Act 2016 No. 16 of 2016 49 Authorised by the Chief Parliamentary Counsel Division 2—Hearings 61 Notice of hearing (1) If an investigating panel decides to hold a hearing for the purposes of investigating a matter under this Part, the investigating panel must give notice of the hearing to the officer concerned. (2) A notice under subsection (1) must— (a) specify the date on which the hearing is to commence; and (b) specify the place at which the hearing is to be held. (3) A notice under subsection (1) must be given to the officer concerned— (a) at least 21 days before the hearing is to commence; or (b) within any shorter period that is agreed to by the officer concerned. 62 Hearing procedure (1) In a hearing held by an investigating panel— (a) the investigating panel may give directions regarding the conduct of the hearing; and (b) the officer concerned may be represented by an Australian lawyer. (2) Unless subsection (3) applies, a hearing held by an investigating panel is closed to members of the public. (3) An investigating panel may direct that a hearing or particular parts of a hearing be open to the public if there are exceptional circumstances and the investigating panel is satisfied that it would be in the public interest, having regard to— -- 57 of 169 -- Part 5—Investigation powers and procedures Judicial Commission of Victoria Act 2016 No. 16 of 2016 50 Authorised by the Chief Parliamentary Counsel (a) the disclosure considerations; and (b) if coercive powers are being used against the officer concerned, whether directing that a hearing or particular parts of a hearing be open to the public would still be in the public interest. (4) An investigating panel must not hold a hearing in public if the hearing may disclose particulars likely to lead to the identification of a person who has made an assessable disclosure. (5) However, an investigating panel may hold a hearing in public if the information that may be disclosed is information to which section 53(2)(a), (c) or (d) of the Protected Disclosure Act 2012 applies. 63 Offence to be present at closed hearing A person must not be present at a hearing held by an investigating panel that is closed to members of the public unless the person is— (a) a member of the investigating panel; or (b) the officer concerned; or (c) attending in accordance with a witness summons; or (d) an Australian lawyer representing the officer concerned or a person who is attending in accordance with a witness summons; or (e) an Australian lawyer, or other person, engaged by the investigating panel to assist in the hearing; or (f) entitled to be present by reason of a direction given by the investigating panel under section 62; or -- 58 of 169 -- Part 5—Investigation powers and procedures Judicial Commission of Victoria Act 2016 No. 16 of 2016 51 Authorised by the Chief Parliamentary Counsel (g) any other person authorised to be present by the investigating panel or otherwise authorised to be present under this Act or any other law. Penalty: 120 penalty units or imprisonment for 12 months or both. 64 Protection of lawyers and witnesses (1) An Australian lawyer representing a person at a hearing before an investigating panel or assisting an investigating panel at a hearing has the same protection and immunity as an Australian legal practitioner has in representing a party in a proceeding in the Supreme Court. (2) A person appearing as a witness at a hearing before an investigating panel has the same protection and immunity as a witness has in a proceeding in the Supreme Court. 65 Notification of certain matters to the Judicial Commission (1) At the conclusion of a hearing held by an investigating panel, if any of the following occurred during the course of investigating a matter under this Part, the investigating panel must give the Director written notice of that occurrence— (a) the exercise of any coercive power; (b) the making of a direction under section 62(3) in relation to the opening of the hearing, or part of the hearing, to the public. (2) Written notice under subsection (1) must— (a) if in relation to the use of any coercive power, explain why the power was exercised; and -- 59 of 169 -- Part 5—Investigation powers and procedures Judicial Commission of Victoria Act 2016 No. 16 of 2016 52 Authorised by the Chief Parliamentary Counsel (b) if a direction was made under section 62(3) explain why the investigating panel directed that the hearing or part of the hearing be open to the public. 66 Notification of certain matters to the Victorian Inspectorate (1) The Director must give the Victorian Inspectorate, by written notice, details of any information the Director has received under section 65. (2) At the end of an investigation of a matter by the Judicial Commission, the Director must give the Victorian Inspectorate— (a) written notice of the exercise of a power under section 29 requiring an officer concerned to undergo a medical examination; and (b) a written explanation of why the power specified in paragraph (a) was used. 67 Copies of particular guidelines to be provided to Victorian Inspectorate The Director must give the Victorian Inspectorate a copy of any guidelines made by the Judicial Commission regarding any of the following matters— (a) the use of coercive powers; (b) the determination by an investigating panel of whether a hearing or part of a hearing should be open to the public under section 62(3). -- 60 of 169 -- Part 5—Investigation powers and procedures Judicial Commission of Victoria Act 2016 No. 16 of 2016 53 Authorised by the Chief Parliamentary Counsel 68 Request for information by the Victorian Inspectorate (1) The Victorian Inspectorate may request the Judicial Commission to give the Victorian Inspectorate information about the use of coercive powers under this Act. (2) Information given to the Victorian Inspectorate under this section must be in writing. Division 3—Additional powers 69 Power to require production of documents (1) For the purposes of investigating a matter under this Part, an investigating panel may, by written notice, require a person to produce to the investigating panel any document (other than a medical report unless the medical report is prepared in accordance with Division 3 of Part 6) or thing in the possession or control of that person that is material to the investigation. (2) Written notice under subsection (1)— (a) must specify a reasonable time within which the person must comply with the requirement; and (b) must contain the prescribed information (if any); and (c) must be served on the person to whom it applies. -- 61 of 169 -- Part 5—Investigation powers and procedures Judicial Commission of Victoria Act 2016 No. 16 of 2016 54 Authorised by the Chief Parliamentary Counsel (3) A person must comply with a written notice under this section unless the person has a reasonable excuse. Penalty: 60 penalty units or imprisonment for 6 months or both. Note The privilege against self-incrimination is abrogated. See section 90. 70 Witness summons (1) An investigating panel may issue the following witness summonses to a person— (a) a summons to attend to give evidence at a hearing at a specified time and place on a specified date; (b) a summons to attend at a specified time and place on a specified date to produce documents (other than a medical report unless the medical report is prepared in accordance with Division 3 of Part 6) or other things to the investigating panel; (c) a summons to attend a hearing at a specified time and place on a specified date to give evidence and produce documents (other than a medical report unless the medical report is prepared in accordance with Division 3 of Part 6) or other things. (2) An investigating panel may, under subsection (1) issue a witness summons directed to a person if satisfied that is reasonable to do so, having regard to— (a) the evidentiary value of the information, document or thing sought to be obtained from the person; and -- 62 of 169 -- Part 5—Investigation powers and procedures Judicial Commission of Victoria Act 2016 No. 16 of 2016 55 Authorised by the Chief Parliamentary Counsel (b) the age of the person and any mental impairment to which the person is known or believed to be subject. (3) An investigating panel must not issue a witness summons to a person who is under the age of 18 years unless the investigating panel considers on reasonable grounds that— (a) the information, document or thing that the person could provide may be compelling and probative; and (b) it is not practicable to obtain the information, document or thing by any other means. (4) If a person is issued with a witness summons referred to in subsection (1)(b), an investigating panel may excuse that person from attendance if the person produces the required documents or things to the investigating panel before the time and date for production specified in the witness summons in accordance with any directions given by the investigating panel. 71 Content and form of witness summons A witness summons must be in the prescribed form and contain the prescribed information. 72 Witness summons directed to person under 16 years (1) A witness summons directed to a person under the age of 16 years at the date of issue of the witness summons has no effect. (2) A person who claims to be under the age of 16 years at the date of issue of a witness summons directed to the person must provide proof of age in accordance with the regulations to an investigating panel. -- 63 of 169 -- Part 5—Investigation powers and procedures Judicial Commission of Victoria Act 2016 No. 16 of 2016 56 Authorised by the Chief Parliamentary Counsel 73 Service of witness summons (1) Subject to subsection (2), a witness summons must be served at a reasonable time, being not less than 7 days, before the date on which the person is required to attend or otherwise comply with the witness summons. (2) An investigating panel may issue a witness summons requiring immediate attendance by a person before the investigating panel if it considers on reasonable grounds that a delay in the person's attendance is likely to result in— (a) evidence being lost or destroyed; or (b) the commission of an offence; or (c) the escape of a person who is summoned; or (d) serious prejudice to the conduct of the investigation to which the witness summons relates. (3) A witness summons directed to a natural person must be served by serving a copy of the witness summons to the person personally. (4) A witness summons directed to a body corporate must be served by leaving a copy of the witness summons at the registered office or principal place of business of the body corporate with a person apparently employed at that office or place and who is apparently at least 16 years of age. (5) Subsection (4) is in addition to, and not in derogation of, sections 109X and 601CX of the Corporations Act. 74 Supreme Court may order service by other means (1) If it appears that it is not reasonably practicable to serve a witness summons in accordance with section 73, an investigating panel may apply to the -- 64 of 169 -- Part 5—Investigation powers and procedures Judicial Commission of Victoria Act 2016 No. 16 of 2016 57 Authorised by the Chief Parliamentary Counsel Supreme Court for an order that the witness summons be served by another means. (2) On an application under subsection (1), if the Supreme Court is satisfied that it is not reasonably practicable to serve a witness summons in accordance with section 73, the Court may— (a) order that the witness summons be served by any other means the Court considers appropriate; or (b) make an order for substituted service. 75 Witness already held in custody (1) If a witness summons is issued to a person who is in prison or a police gaol, an investigating panel may give a written direction that the person be brought before the investigating panel as required by the witness summons. (2) A direction under subsection (1)— (a) must be in the prescribed form (if any); and (b) must include a statement that if the person who is the subject of the direction is under the age of 16 years at the date the direction is given, the direction is of no effect and the person is not required to attend the investigating panel. 76 Specific provisions relating to witnesses (1) At any time during a hearing, if the investigating panel becomes aware that a witness is under the age of 16 years, the investigating panel must immediately release the person from compliance with any witness summons applying to that person. -- 65 of 169 -- Part 5—Investigation powers and procedures Judicial Commission of Victoria Act 2016 No. 16 of 2016 58 Authorised by the Chief Parliamentary Counsel (2) If a witness does not have knowledge of the English language that is sufficient to enable the witness to understand questions asked of the witness or to answer those questions the investigating panel must provide for a competent interpreter to be present during the hearing of the witness. (3) An investigating panel must direct that an independent person, or a parent or guardian, be present during the hearing of a witness if— (a) the investigating panel believes the witness has a mental impairment; or (b) the witness provides the investigating panel with reasonably satisfactory medical evidence that the witness has a mental impairment; or (c) the witness is 16 or 17 years of age. 77 Actions to be taken before questioning of a witness or requiring production of a document or other thing (1) Before a witness summoned to attend a hearing and not excused from attendance under section 70(4) is asked any questions or required to produce a document or thing, an investigating panel must— (a) confirm the age of a witness if the investigating panel considers that a witness may be under the age of 18 years; and (b) release any witness under the age of 16 years from compliance with any witness summons; and (c) inform the witness orally and in writing of the person's rights and obligations unless— (i) the witness is represented at the hearing by an Australian lawyer; or -- 66 of 169 -- Part 5—Investigation powers and procedures Judicial Commission of Victoria Act 2016 No. 16 of 2016 59 Authorised by the Chief Parliamentary Counsel (ii) the witness informs the investigating panel that, prior to the hearing an Australian lawyer has explained the person's rights and obligations; and (d) inform an Australian lawyer who is representing a witness or other person at the hearing of any non-disclosure requirements that apply under the Act; and (e) take any other actions prescribed for the purposes of this subsection. (2) In the case of an investigation of a protected disclosure complaint, before a person attending as a witness at a hearing (whether voluntarily or in response to a witness summons) is asked any questions or required to produce a document or other thing, an investigating panel must— (a) advise the person that additional obligations under the Protected Disclosure Act 2012 relating to confidentiality may apply to the person; and (b) inform the person of the nature of those obligations; and (c) inform an Australian lawyer who is representing a witness or other person at the hearing of the confidentiality requirements of the Protected Disclosure Act 2012. 78 Power to examine on oath or affirmation (1) A member of an investigating panel may administer an oath or affirmation to a person. (2) A member of an investigating panel may, in relation to a person summoned to attend a hearing— (a) require the person to either take an oath or make an affirmation; or -- 67 of 169 -- Part 5—Investigation powers and procedures Judicial Commission of Victoria Act 2016 No. 16 of 2016 60 Authorised by the Chief Parliamentary Counsel (b) administer an oath or affirmation to the person; or (c) examine the person in accordance with the witness summons; or (d) require the person to produce documents or things in accordance with the witness summons. (3) A member of an investigating panel may take a statutory declaration from any witness or other person. 79 Offence for summoned witness to fail to attend hearing (1) A person who is served with a witness summons to attend as a witness to give evidence or to produce documents or other things to an investigating panel must not, without reasonable excuse, fail to attend in accordance with the witness summons. Penalty: 240 penalty units or imprisonment for 2 years or both. (2) A person who is served with a witness summons to attend as a witness to give evidence or to produce documents or other things at a hearing before an investigating panel must not, without reasonable excuse, fail to attend from day to day unless— (a) excused by the investigating panel; or (b) released from further attendance by the investigating panel. Penalty: 240 penalty units or imprisonment for 2 years or both. -- 68 of 169 -- Part 5—Investigation powers and procedures Judicial Commission of Victoria Act 2016 No. 16 of 2016 61 Authorised by the Chief Parliamentary Counsel 80 Offence for summoned witness to refuse or fail to answer question A person who is served with a witness summons to attend as a witness to give evidence at a hearing before an investigating panel must not, without reasonable excuse, refuse or fail to answer a question that the person is required to answer by the investigating panel. Penalty: 240 penalty units or imprisonment for 2 years or both. 81 Offence for summoned witness to fail to produce document or thing A person who is served with a witness summons must not, without reasonable excuse, refuse or fail to produce a document or other thing that the person was required to produce by the witness summons. Penalty: 240 penalty units or imprisonment for 2 years or both. 82 Offence for summoned witness to fail to take oath or make affirmation A person who is served with a witness summons to attend as a witness at a hearing before an investigating panel must not, without reasonable excuse, refuse or fail to take an oath or make an affirmation when required to do so. Penalty: 240 penalty units or imprisonment for 2 years or both. 83 Allowances for compliance with witness summons A person required by a witness summons to attend a hearing before an investigating panel or to produce documents or other things is entitled to receive the prescribed allowance for expenses incurred in complying with the witness summons. -- 69 of 169 -- Part 5—Investigation powers and procedures Judicial Commission of Victoria Act 2016 No. 16 of 2016 62 Authorised by the Chief Parliamentary Counsel Division 4—Search warrant powers 84 Search warrant (1) An authorised officer may apply to a Judge of the Supreme Court for a search warrant in relation to either or both of the following— (a) particular premises, if the authorised officer believes on reasonable grounds that entry to the premises (including any vehicle, vessel or aircraft on or in those premises) is necessary for the purposes of an investigation; (b) a particular vehicle, vessel or aircraft located in a public place, if the authorised officer believes on reasonable grounds that entry to the vehicle, vessel or aircraft is necessary for the purposes of an investigation. (2) If a Judge of the Supreme Court is satisfied by evidence on oath, whether oral or by affidavit, that there are reasonable grounds for the belief under subsection (1)(a) or (b), the Judge may issue a search warrant authorising a police officer (with the assistance of other police officers if necessary)— (a) to enter and search the premises or vehicle, vessel or aircraft and inspect any document or thing at those premises or on or in that vehicle, vessel or aircraft; and (b) to make a copy of any document relevant, or that the person reasonably considers may be relevant, to the investigation; and -- 70 of 169 -- Part 5—Investigation powers and procedures Judicial Commission of Victoria Act 2016 No. 16 of 2016 63 Authorised by the Chief Parliamentary Counsel (c) to take possession of any document or other thing relevant, or that the person reasonably considers may be relevant, to the investigation. (3) A search warrant issued under this section must be in the prescribed form (if any) and state— (a) the purpose for which the search is required; and (b) any conditions to which the search warrant is subject; and (c) whether entry is authorised to be made at any time of the day or night or during stated hours of the day or night; and (d) a day, not later than 28 days after the issue of the search warrant, on which the search warrant ceases to have effect. (4) Subject to subsection (5) and except as otherwise provided by this Act, the rules to be observed with respect to search warrants under the Magistrates' Court Act 1989 extend and apply to warrants under this section. (5) Despite section 78 of the Magistrates' Court Act 1989, a search warrant issued under this Act must not authorise the arrest of a person. (6) A member of an investigating panel may authorise a person for the purposes of this section. (7) In this section— authorised officer means— (a) a member of an investigating panel; or (b) a person authorised by a member of the investigating panel under subsection (6). -- 71 of 169 -- Part 5—Investigation powers and procedures Judicial Commission of Victoria Act 2016 No. 16 of 2016 64 Authorised by the Chief Parliamentary Counsel 85 Search warrant in relation to court or VCAT premises (1) Subject to subsection (2), if a search warrant is issued in relation to court premises, an investigating panel must notify and consult the head of jurisdiction for that court about the issuing of the search warrant. (2) If the officer concerned is the head of jurisdiction to which the search warrant relates, an investigating panel must notify and consult the next most senior judicial officer of the court. (3) Subject to subsection (4), if a search warrant is issued in relation to VCAT premises, an investigating panel must notify and consult the President of VCAT about the issuing of the search warrant. (4) If the officer concerned is the President of VCAT, an investigating panel must notify and consult the Acting President or, if there is no Acting President, the Chief Justice. (5) Despite subsection (1) and (3), an investigating panel may, instead, notify and consult the Chief Justice about the issuing of the search warrant in relation to court premises or VCAT premises. 86 Procedure for executing a search warrant (1) On executing a search warrant, the person executing it— (a) must announce that the person is authorised by the search warrant to enter the premises, vehicle, vessel or aircraft, as the case requires, unless, in the case of a vehicle, vessel or aircraft it is in a public place; and -- 72 of 169 -- Part 5—Investigation powers and procedures Judicial Commission of Victoria Act 2016 No. 16 of 2016 65 Authorised by the Chief Parliamentary Counsel (b) if the person has been unable to obtain unforced entry, must give any person at the premises or in control of the vehicle, vessel or aircraft an opportunity to allow entry to the premises, vehicle, vessel or aircraft, as the case requires. (2) A person executing a search warrant need not comply with subsection (1) if the person believes on reasonable grounds that immediate entry to the premises, vehicle, vessel or aircraft is required to ensure— (a) the safety of any person; or (b) that the effective execution of the search warrant is not frustrated. (3) If the occupier is present at premises where a search warrant is being executed, the person executing the warrant must— (a) identify themselves to the occupier; and (b) give the occupier a copy of the search warrant. (4) If the occupier is not present at premises where a search warrant is being executed, the person executing the warrant must— (a) identify themselves to a person at the premises who is apparently over the age of 18 years; and (b) give that person a copy of the warrant. (5) If there is no person apparently over the age of 18 years present at the premises where a search warrant is being executed, the person executing the warrant must leave a copy of the warrant in a conspicuous place at the premises unless an investigating panel has given a direction under subsection (6). -- 73 of 169 -- Part 5—Investigation powers and procedures Judicial Commission of Victoria Act 2016 No. 16 of 2016 66 Authorised by the Chief Parliamentary Counsel (6) An investigating panel may direct that a copy of the search warrant not be left at premises where no person apparently over the age of 18 years is present if the investigating panel is satisfied that it would be contrary to the public interest for the copy to be left at the premises. 87 Copies or receipts to be given for documents or other things (1) If under a search warrant a person takes possession of— (a) a document, disk or tape or other thing that can be readily copied; or (b) a storage device the information in which can be readily copied— the person, on request by the occupier, must give a copy of the document, thing or information to the occupier as soon as practicable after taking possession of it, unless it would be contrary to the public interest to do so. (2) If a person takes possession of a document or thing under a search warrant and has not provided a copy of the document, thing or information under subsection (1), the person must provide a receipt for that document or thing containing the prescribed particulars as soon as practicable after taking possession of it. 88 Return of documents and other things (1) An investigating panel must take all reasonable steps to return a document or other thing seized under a search warrant to the person from whom it was seized if the document or other thing is required as evidence relating to a legal proceeding. -- 74 of 169 -- Part 5—Investigation powers and procedures Judicial Commission of Victoria Act 2016 No. 16 of 2016 67 Authorised by the Chief Parliamentary Counsel (2) An investigating panel must immediately take all reasonable steps to return a document or other thing seized under a search warrant to the person from whom it was seized if the investigating panel is no longer satisfied that its retention is necessary for the purposes of— (a) an investigation; or (b) a report of an investigation; or (c) a legal proceeding arising out of, or connected with, an investigation. 89 Assistance in executing search warrants (1) A person executing a search warrant may— (a) seek the assistance of another person (an assistant) over the age of 18 years who possesses specialised skills or technical knowledge necessary for exercising a power authorised by the search warrant; or (b) take onto the premises any equipment, vehicle, animal or material that the person reasonably requires for exercising a power authorised by the search warrant. (2) The person may authorise the assistant— (a) to take stated action at the premises, vehicle, vessel or aircraft; and (b) to exercise stated powers the person is authorised by the search warrant to exercise. (3) For the purposes of subsection (2), the person— (a) is only permitted to authorise the assistant to take stated action or exercise stated powers that are consistent with the specialist skills or technical knowledge of the assistant; and (b) cannot authorise the assistant to arrest a person. -- 75 of 169 -- Part 5—Investigation powers and procedures Judicial Commission of Victoria Act 2016 No. 16 of 2016 68 Authorised by the Chief Parliamentary Counsel (4) The person must inform the assistant of— (a) action the assistant is authorised to take; and (b) the assistant's powers under this section. Division 5—Privilege 90 Privilege against self-incrimination abrogated (1) A person is not excused from producing a document or other thing in accordance with a requirement under section 69(1) or a search warrant under section 84, on the ground that the production of the document or other thing might tend to incriminate the person or make the person liable to a penalty. (2) A person is not excused from answering a question or giving information or from producing a document or other thing in accordance with a witness summons, on the ground that the answer to the question, the information, or the production of the document or other thing, might tend to incriminate the person or make the person liable to a penalty. (3) Any answer, information, document or thing that might tend to incriminate the person or make the person liable to a penalty is not admissible in evidence against the person before any court or person acting judicially, except in proceedings for— (a) perjury or giving false information; or (b) an offence against this Act; or (c) an offence against the Independent Broad-based Anti-corruption Commission Act 2011 or the Victorian Inspectorate Act 2011; or -- 76 of 169 -- Part 5—Investigation powers and procedures Judicial Commission of Victoria Act 2016 No. 16 of 2016 69 Authorised by the Chief Parliamentary Counsel (d) an offence against section 72 or 73 of the Protected Disclosure Act 2012; or (e) a disciplinary process or action. (4) Nothing in subsection (3) prevents the admission in a criminal proceeding or proceeding for the imposition of a penalty of any evidence obtained as a direct or indirect consequence of an answer given by the officer concerned at a hearing or a document or other thing produced by the officer concerned at a hearing or in answer to a witness summons or a requirement under section 69(1) or a search warrant under section 84, and any such evidence is admissible in the proceeding in accordance with the rules of evidence applicable to the proceeding. (5) In this section— disciplinary process or action has the same meaning as in the Independent Broad- based Anti-corruption Commission Act 2011. 91 Journalist privilege does not apply A person is not entitled to the privilege provided for in Division 1C of Part 3.10 of the Evidence Act 2008 in relation to— (a) producing a document or other thing in accordance with a requirement under section 69(1); or (b) answering a question or giving information or producing a document or other thing in accordance with a witness summons; or (c) the exercise of a power under Division 4. -- 77 of 169 -- Part 5—Investigation powers and procedures Judicial Commission of Victoria Act 2016 No. 16 of 2016 70 Authorised by the Chief Parliamentary Counsel 92 Procedure for determining claims of privilege— notice requiring production or witness summons (1) This section applies if— (a) a notice requiring the production of a document or other thing is served on a person under section 69(1) or a witness summons is served on a person under section 70; and (b) the person claims that— (i) the document or other thing to which the notice or witness summons relates is the subject of privilege; or (ii) information which is an answer to a question or otherwise required to be provided by the person at a hearing before an investigating panel is the subject of privilege. (2) A person making a claim to which this section applies must produce the document or other thing in accordance with the notice or attend the hearing in accordance with the witness summons. (3) An investigating panel must consider the claim of privilege and either— (a) withdraw the requirement to produce the document or other thing or to answer the question or provide the information; or (b) not withdraw the requirement and, in the case of a requirement to produce a document or other thing, require the claimant to immediately seal the document or other thing in an envelope, or otherwise secure it if it cannot be sealed in an envelope, and give it to the investigating panel. -- 78 of 169 -- Part 5—Investigation powers and procedures Judicial Commission of Victoria Act 2016 No. 16 of 2016 71 Authorised by the Chief Parliamentary Counsel (4) If the claim relates to a document or other thing, an investigating panel must not inspect the document or thing in considering the claim. (5) If an investigating panel does not withdraw the requirement to produce the document or other thing or to answer the question or provide the information, the investigating panel must— (a) apply to the Supreme Court in accordance with section 94 for determination of the claim of privilege; and (b) if the investigating panel requires the claimant to give the document or other thing to the investigating panel under subsection (3)(b), give the sealed envelope or the document or other thing otherwise secured to the proper court officer of the Supreme Court to be held in safe custody. (6) Subject to section 95, a person must not open a sealed envelope or interfere with a document or thing secured otherwise than in an envelope before delivery to the proper officer of the Supreme Court. 93 Procedure for determining privilege—search warrants (1) This section applies if— (a) a person executing a search warrant (the searcher) wishes to inspect, copy or seize a document or other thing under the search warrant; and (b) a person who is entitled to claim the privilege (the claimant) claims that the document or other thing is the subject of privilege. -- 79 of 169 -- Part 5—Investigation powers and procedures Judicial Commission of Victoria Act 2016 No. 16 of 2016 72 Authorised by the Chief Parliamentary Counsel (2) The searcher must consider the claim of privilege and either— (a) cease exercising the power under the search warrant in relation to the document or other thing over which the claim of privilege is made; or (b) require the claimant to immediately seal the document or other thing in an envelope, or otherwise secure it if it cannot be sealed in an envelope, and give it to the searcher. (3) The searcher must not inspect the document in considering the claim of privilege. (4) If the searcher requires the claimant to give the document or other thing to the searcher under subsection (2)(b), the searcher must— (a) notify the investigating panel as soon as practicable; and (b) give the sealed envelope or the document or other thing otherwise secured to the proper court officer of the Supreme Court as soon as practicable, and in any event within 3 days after receiving it from the claimant, to be held in safe custody. (5) Subject to section 95, a person must not open a sealed envelope or interfere with a document or thing secured otherwise than in an envelope before delivery to the proper officer. 94 Application to Supreme Court to determine privilege (1) Within the relevant period specified in subsection (2), an investigating panel may apply to the Supreme Court for a determination of a claim of privilege under this Division. -- 80 of 169 -- Part 5—Investigation powers and procedures Judicial Commission of Victoria Act 2016 No. 16 of 2016 73 Authorised by the Chief Parliamentary Counsel (2) An application under subsection (1) must be made— (a) in the case of a document or other thing, within 7 days after the sealed envelope or the document or other thing secured otherwise than in an envelope is given to the proper officer under section 92 or 93; or (b) within 7 days after the person refused to provide information which is an answer to a question or otherwise required to be provided at a hearing on the basis of a claim of privilege. (3) If no application is made under subsection (1) in relation to a document or other thing within the period of 7 days, the proper officer must return the document or other thing to the claimant. (4) If no application is made under subsection (1) in relation to the provision of information in answer to a question or otherwise required to be provided within the period of 7 days, the requirement to answer the question or provide the information is taken to be withdrawn. (5) An investigating panel must give notice of the application to the claimant for privilege within a reasonable time before the hearing of the application. (6) Notice under subsection (5) must be in the prescribed form (if any). (7) The claimant is entitled to appear and be heard on the hearing of the application. 95 Determination of claim (1) On an application under section 94, the Supreme Court must determine whether or not the information required in answer to a question asked at the hearing or otherwise required to be -- 81 of 169 -- Part 5—Investigation powers and procedures Judicial Commission of Victoria Act 2016 No. 16 of 2016 74 Authorised by the Chief Parliamentary Counsel provided or the document or other thing in the sealed envelope or secured otherwise than in an envelope is the subject of privilege. (2) If the application is in respect of a document or other thing, for the purposes of making a determination under subsection (1), the Judge constituting the Supreme Court and any other person authorised by the Court may— (a) open the sealed envelope or access the document or other thing secured otherwise than in an envelope; and (b) inspect the document or thing. (3) If the Court determines that the document or other thing is the subject of privilege— (a) the Court must order that the document or thing be returned to the claimant; and (b) the proper officer must return the document or thing to the claimant. (4) If the Court determines that the document or other thing is not the subject of privilege— (a) the Court must order that the document or thing be given to the investigating panel; and (b) the proper officer must release the document or thing accordingly. (5) If the Court determines that the information which is an answer to a question or otherwise required to be provided is the subject of privilege, the Court must order that the claimant is not required to provide the information to the investigating panel in answer to the question or is not otherwise required to provide that information, as the case requires. -- 82 of 169 -- Part 5—Investigation powers and procedures Judicial Commission of Victoria Act 2016 No. 16 of 2016 75 Authorised by the Chief Parliamentary Counsel (6) If the Court determines that the information which is an answer to a question or otherwise required to be provided is not the subject of privilege, the Court must order that the claimant provide the information to the investigating panel in answer to the question or otherwise provide that information in accordance with the requirement of the investigating panel, as the case requires. 96 Offence to open sealed envelope or have access to document or thing (1) Subject to section 95(2), a person must not open a sealed envelope or otherwise have access to the document or thing contained in the sealed envelope before— (a) the Supreme Court determines the claim of privilege to it; or (b) the document or thing is returned to the claimant. Penalty: 120 penalty units or imprisonment for 12 months or both. (2) Subject to section 95(2), a person must not open or otherwise have access to a document or thing secured otherwise than in an envelope before— (a) the Supreme Court determines the claim of privilege to it; or (b) the document or thing is returned to the claimant. Penalty: 120 penalty units or imprisonment for 12 months or both. -- 83 of 169 -- Part 6—Further provisions for investigations Judicial Commission of Victoria Act 2016 No. 16 of 2016 76 Authorised by the Chief Parliamentary Counsel Part 6—Further provisions for investigations Division 1—Standing down 97 Standing down of certain judicial officers or non- judicial members of VCAT by principal head of jurisdiction (1) The principal head of jurisdiction of a judicial officer (other than a judicial officer specified in subsection (7)) or non-judicial member of VCAT may make a determination to stand down the officer or member from office at any time. (2) A determination by a principal head of jurisdiction under subsection (1) must not be made unless the principal head of jurisdiction believes that— (a) the continued performance of functions by the judicial officer or non-judicial member of VCAT is likely to impair public confidence in the impartiality, independence, integrity or capacity of the officer or member or the court or tribunal to which the officer or member is appointed or assigned; and (b) immediate action is required. (3) A determination under subsection (1) takes effect immediately. (4) The principal head of jurisdiction who makes a determination under subsection (1) must notify the judicial officer or non-judicial member of VCAT in respect of whom the determination was made of the determination and the details of the determination including that the determination is effective immediately. -- 84 of 169 -- Part 6—Further provisions for investigations Judicial Commission of Victoria Act 2016 No. 16 of 2016 77 Authorised by the Chief Parliamentary Counsel (5) A determination under subsection (1) remains in force for 21 days from the date the determination is made, unless a determination is made under section 98 to continue to stand down the judicial officer or non-judicial member of VCAT. (6) Unless the principal head of jurisdiction who makes a determination under subsection (1) has already made a referral under section 7 to the Judicial Commission about the conduct or capacity of the judicial officer or non-judicial member of VCAT on which a determination under subsection (1) is based, the principal head of jurisdiction must make a referral to the Judicial Commission under section 7 within 3 days of making that determination. (7) A determination to stand down any of the following judicial officers cannot be made under this section— (a) a head of jurisdiction; (b) a judicial officer of the Supreme Court; (c) a judicial officer of the County Court. 98 Standing down of officer concerned on recommendation of Judicial Commission or an investigating panel (1) At any time after a complaint or a referral is made to the Judicial Commission, the Judicial Commission or an investigating panel (as appropriate depending on whether the Judicial Commission or an investigating panel is considering the matter) may make a recommendation that the officer concerned— (a) be stood down from office; or (b) continue to be stood down from office, if the officer concerned has been stood down under section 97. -- 85 of 169 -- Part 6—Further provisions for investigations Judicial Commission of Victoria Act 2016 No. 16 of 2016 78 Authorised by the Chief Parliamentary Counsel (2) On the recommendation of the Judicial Commission or an investigating panel (as the case may be) under subsection (1)— (a) a principal head of jurisdiction may make a determination to stand down or continue to stand down the officer concerned, if the officer concerned is not— (i) a head of jurisdiction; or (ii) a judicial officer of the Supreme Court; or (iii) a judicial officer of the County Court; or (b) the relevant council of judges may make a determination to stand down the officer concerned, if the officer concerned is— (i) a head of jurisdiction; or (ii) a judicial officer of the Supreme Court; or (iii) a judicial officer of the County Court. (3) A recommendation of the Judicial Commission or an investigating panel under subsection (1), or a determination by a person or the relevant council of judges under subsection (2), must not be made unless— (a) the Judicial Commission, an investigating panel, the person or the relevant council of judges believes that the matter the subject of the complaint or referral could, if substantiated, amount to proved misbehaviour or incapacity of the officer concerned such as to warrant the removal of the officer from office; and -- 86 of 169 -- Part 6—Further provisions for investigations Judicial Commission of Victoria Act 2016 No. 16 of 2016 79 Authorised by the Chief Parliamentary Counsel (b) one or more of the following apply— (i) the officer concerned has been charged with, found guilty of or convicted of an indictable offence or of an offence which, if committed in Victoria, would be an indictable offence; (ii) the officer concerned has been committed to stand trial for an indictable offence, or is a person against whom a direct presentment has been filed in relation to an indictable offence; (iii) the officer concerned has been subject to a process in another jurisdiction that is equivalent to a process specified in subparagraph (ii); (iv) the Judicial Commission, the investigating panel, the person or the relevant council of judges believes that the continued performance of functions by the officer concerned is likely to impair public confidence in the impartiality, independence, integrity or capacity of the officer concerned or the court or tribunal to which the officer concerned is appointed or assigned. (4) A principal head of jurisdiction who makes a determination under subsection (2)(a) must— (a) give the officer concerned written notice of the decision, including the date the standing down takes effect; and (b) notify any additional head of jurisdiction of the officer concerned; and (c) notify the Judicial Commission; and -- 87 of 169 -- Part 6—Further provisions for investigations Judicial Commission of Victoria Act 2016 No. 16 of 2016 80 Authorised by the Chief Parliamentary Counsel (d) notify any investigating panel considering the matter. (5) If the relevant council of judges makes a determination under subsection (2)(b), the relevant council of judges must— (a) give the officer concerned written notice of the decision, including the date the standing down takes effect; and (b) notify the head of jurisdiction (if any) of the officer concerned; and (c) notify the Judicial Commission; and (d) notify any investigating panel considering the matter. 99 Effect of standing down of certain judicial officers and non-judicial members of VCAT (1) The standing down of a judicial officer or non-judicial member of VCAT under section 97 or section 98(2)(a) may relate to— (a) all of the functions of the officer or member, including in relation to particular classes of proceeding; or (b) the functions specified in the determination, including in relation to particular classes of proceeding, made by the person to stand down the officer or member. (2) A judicial officer or non-judicial member of VCAT who has been stood down must not perform the functions of office to the extent that the member has been stood down in respect of those functions. (3) If a judicial officer or non-judicial member of VCAT who has been stood down performs a function in respect of which the officer or member has been stood down, the function is taken to be -- 88 of 169 -- Part 6—Further provisions for investigations Judicial Commission of Victoria Act 2016 No. 16 of 2016 81 Authorised by the Chief Parliamentary Counsel validly performed, as if the officer has not been stood down. (4) Nothing in this Division is to be taken to affect the payment of salary, allowances and other entitlements of a judicial officer or non-judicial member of VCAT who has been stood down. 100 Effect of standing down of judicial officer under section 98(2)(b) (1) The standing down of an officer concerned under section 98(2)(b) must relate to all of the functions of the officer, including those functions exercised as a result of holding the office. (2) Nothing in this Division is to be taken to affect the payment of salary, allowances and other entitlements of a judicial officer who has been stood down under section 98(2)(b). 101 Consultation requirements (1) A principal head of jurisdiction must consult with any additional head of jurisdiction of an officer concerned before making a determination to stand down the officer under section 98(2)(a). (2) A failure to comply with a consultation requirement under subsection (1) does not invalidate a determination to stand down the officer concerned. 102 Alteration to or revocation of standing down (1) If an officer concerned has been stood down under section 97 or 98(2)(a), the person who stood down the officer may at any time— (a) alter the functions of the officer concerned in respect of which the officer has been stood down; or (b) reinstate the officer concerned. -- 89 of 169 -- Part 6—Further provisions for investigations Judicial Commission of Victoria Act 2016 No. 16 of 2016 82 Authorised by the Chief Parliamentary Counsel (2) A person who makes a decision under subsection (1) must— (a) give the officer concerned written notice of the decision, including the date the decision takes effect; and (b) notify any additional head of jurisdiction of the officer concerned; and (c) notify the Judicial Commission; and (d) notify any investigating panel considering the matter. (3) If the officer concerned has been stood down under section 98(2)(b), the relevant council of judges may at any time reinstate the officer concerned. (4) If the relevant council of judges makes a determination under subsection (3), the relevant council of judges must— (a) give the officer concerned written notice of the decision, including the date the decision takes effect; and (b) notify the head of jurisdiction (if any) of the officer concerned; and (c) notify the Judicial Commission; and (d) notify any investigating panel considering the matter. 103 Reinstatement of officers concerned (1) An officer concerned who has been stood down under section 97 or 98 is reinstated if— (a) the complaint or referral is dismissed; or (b) the complaint or referral is referred to the nominated head of jurisdiction or nominated person under section 13(4) or 34(3). -- 90 of 169 -- Part 6—Further provisions for investigations Judicial Commission of Victoria Act 2016 No. 16 of 2016 83 Authorised by the Chief Parliamentary Counsel (2) On the reinstatement of an officer concerned under subsection (1)— (a) if the officer concerned was stood down by a principal head of jurisdiction, the principal head of jurisdiction must— (i) give the officer concerned written notice of the officer's reinstatement, including the date the reinstatement takes effect; and (ii) notify any additional head of jurisdiction of the officer concerned; and (iii) notify the Judicial Commission; or (b) if the officer concerned was stood down by the relevant council of judges, the Judicial Commission must give the officer concerned written notice of the officer's reinstatement, including the date the reinstatement takes effect. Division 2—Relevant council of judges procedure for standing down determination 104 Determination by relevant council of judges (1) Subject to this Division, for the purposes of making a determination under section 98(2)(b) or section 102(3) the relevant council of judges may regulate its own procedure. (2) If the relevant council of judges is unable to reach agreement in relation to the procedure of the council for the purposes of making a determination referred to in subsection (1), the procedure for making that determination must be decided by a majority of the members of the council present and voting at the meeting. -- 91 of 169 -- Part 6—Further provisions for investigations Judicial Commission of Victoria Act 2016 No. 16 of 2016 84 Authorised by the Chief Parliamentary Counsel 105 Meeting of relevant council of judges to make determination (1) The Chief Justice must determine the time and place for any meeting of the relevant council of judges to make a determination under section 98(2)(b) or 102(3) if the officer concerned is a judicial officer of the Supreme Court (other than the Chief Justice). (2) The Chief Judge must determine the time and place for any meeting of the relevant council of judges to make a determination under section 98(2)(b) or 102(3) if the officer concerned is a judicial officer of the County Court (other than the Chief Judge). (3) The most senior member of the relevant court (other than the Chief Justice, the Chief Judge or the Chief Magistrate) must determine the time and place for any meeting of the relevant council of judges to make a determination under section 98(2)(b) or 102(3) if the officer concerned is— (a) the Chief Justice; or (b) the Chief Judge; or (c) the Chief Magistrate. Division 3—Process for medical examinations 106 Conduct of medical examination (1) A registered medical practitioner conducting a medical examination required by the Judicial Commission or an investigating panel under this Act may require the officer concerned to undergo a medical test, if the registered medical practitioner considers it is necessary. -- 92 of 169 -- Part 6—Further provisions for investigations Judicial Commission of Victoria Act 2016 No. 16 of 2016 85 Authorised by the Chief Parliamentary Counsel (2) The officer concerned must not, without reasonable excuse, fail to comply with a requirement of the registered medical practitioner under subsection (1). Note See sections 30 and 58 for the consequences of a failure to comply. 107 Report after medical examination (1) A registered medical practitioner who conducts a medical examination required by the Judicial Commission or an investigating panel under this Act must give a report to the Judicial Commission or the investigating panel (as appropriate) that sets out— (a) the results of the medical examination and any medical tests conducted by the medical practitioner relating to any impairment, disability, illness or condition relevant to the performance of the officer's functions; and (b) the medical practitioner's opinion (if any) as to the effect those results might have on the continuing ability of the officer to perform the functions of the officer's office; and (c) any recommendations of the medical practitioner arising out of the opinion formed by the medical practitioner; and (d) the extent to which, if any, the officer complied with any request by the medical practitioner to undergo a medical examination or test or provide the results or findings of a medical examination or medical test. (2) If a judicial officer or non-judicial member of VCAT undergoes a medical examination to which this section applies, the Judicial Commission or -- 93 of 169 -- Part 6—Further provisions for investigations Judicial Commission of Victoria Act 2016 No. 16 of 2016 86 Authorised by the Chief Parliamentary Counsel the investigating panel (as the case may be) must— (a) give the officer concerned the report given by the medical practitioner under subsection (1); and (b) advise the officer that the officer may, within the time specified by the Judicial Commission or the investigating panel (as appropriate), provide a medical report under section 108. 108 Further medical report may be provided by officer An officer concerned who is given a report under section 107(2) may submit to the Judicial Commission or the investigating panel (as appropriate) a report from a registered medical practitioner that addresses the matters set out in the report given to the officer. Division 4—Nominating head of jurisdiction or other person 109 Power to nominate additional head of jurisdiction (1) In dealing with a complaint or referral in which there is an additional head of jurisdiction for the officer concerned, the Judicial Commission or an investigating panel (as the case may be) dealing with the complaint or referral may nominate that head of jurisdiction for the purpose of the complaint or referral. (2) In making a determination under subsection (1), the Judicial Commission or the investigating panel making the nomination may take into account whether the complaint or referral specifies conduct in the jurisdiction for which the additional head of jurisdiction is responsible. -- 94 of 169 -- Part 6—Further provisions for investigations Judicial Commission of Victoria Act 2016 No. 16 of 2016 87 Authorised by the Chief Parliamentary Counsel 110 Power to nominate person for Chief Justice, Chief Judge or Chief Magistrate (1) In dealing with a complaint or referral in which the officer concerned is the Chief Justice, the Chief Judge or the Chief Magistrate, the Judicial Commission or an investigating panel (as the case may be) dealing with the complaint or referral may nominate a person to act as the nominated person for the officer concerned. (2) The person who may be nominated under subsection (1) is any one of the following persons— (a) a person who is, or has been, the head of jurisdiction of a Victorian court; (b) a person who has been a Justice of the High Court; (c) a person who is, or has been, the head of jurisdiction of an Australian court (other than a Victorian court or the High Court). (3) In making a determination under subsection (1), the Judicial Commission or the investigating panel (as appropriate) making the nomination— (a) in the case of a person under subsection (2)(a) or (c), must ensure that the person nominated occupies or occupied an office of the same level or higher than the officer concerned; and (b) must not nominate a person who does not consent to the nomination. -- 95 of 169 -- Part 6—Further provisions for investigations Judicial Commission of Victoria Act 2016 No. 16 of 2016 88 Authorised by the Chief Parliamentary Counsel Division 5—Statement of reasons 111 Person not entitled to statement of reasons A person is not entitled to a statement of reasons under section 8 of the Administrative Law Act 1978 for any decision made by the Judicial Commission or an investigating panel under this Act. Division 6—Costs 112 Costs The Judicial Commission or an investigating panel may award the officer concerned in relation to a complaint or referral reasonable costs if the Judicial Commission or the investigating panel (as the case may be)— (a) dismisses the complaint or referral; or (b) refers the complaint or referral to the nominated head of jurisdiction or nominated person; or (c) considers it is otherwise appropriate to do so. -- 96 of 169 -- Part 7—Action to be taken on referral by Judicial Commission or an investigating panel Judicial Commission of Victoria Act 2016 No. 16 of 2016 89 Authorised by the Chief Parliamentary Counsel Part 7—Action to be taken on referral by Judicial Commission or an investigating panel Division 1—Preliminary 113 Definition In this Part— Judicial Commission report means a report by the Judicial Commission under section 19(3) or a report by an investigating panel under section 41. 114 Functions of head of jurisdiction not limited Nothing in this Part limits the functions of a head of jurisdiction under this or any other Act. Division 2—Referrals and reports to nominated head of jurisdiction or nominated person 115 Actions on receiving Judicial Commission report (1) On a Judicial Commission report being made to a nominated head of jurisdiction, the nominated head of jurisdiction may take any one or more of the following actions— (a) counsel the officer concerned in respect of the matter; (b) make recommendations to the officer concerned as to future conduct; (c) exercise any other powers that the nominated head of jurisdiction has in relation to the officer concerned. (2) On a Judicial Commission report being made to a nominated person, the nominated person may take any one or more of the following actions— -- 97 of 169 -- Part 7—Action to be taken on referral by Judicial Commission or an investigating panel Judicial Commission of Victoria Act 2016 No. 16 of 2016 90 Authorised by the Chief Parliamentary Counsel (a) counsel the officer concerned in respect of the matter; (b) make recommendations to the officer concerned. 116 Matters to be taken into account in making decision as to action In making a decision under section 115, the nominated head of jurisdiction or nominated person must have regard to the matters set out in the Judicial Commission report. 117 Procedures on making a decision as to action After a Judicial Commission report is made and the matter referred to a nominated head of jurisdiction or nominated person, the nominated head of jurisdiction or nominated person must— (a) have regard to the Judicial Commission report; and (b) provide a report to the Judicial Commission stating the outcome of the referral from the Judicial Commission or an investigating panel (as the case may be) and the reasons for that outcome. 118 Where there is more than one nominated head of jurisdiction (1) If the matter is referred to more than one nominated head of jurisdiction, the matter may be dealt with jointly or separately by the nominated heads of jurisdiction. (2) If the nominated heads of jurisdiction make a decision under subsection (1) to act separately, each nominated head of jurisdiction must give a report to the Judicial Commission under section 117. -- 98 of 169 -- Part 7—Action to be taken on referral by Judicial Commission or an investigating panel Judicial Commission of Victoria Act 2016 No. 16 of 2016 91 Authorised by the Chief Parliamentary Counsel 119 Notice of action to be given to complainant or referrer (1) On receiving a report under section 117, the Judicial Commission must give a copy of the report in the case of— (a) a complaint, to the complainant; or (b) a referral by a person who is not a nominated head of jurisdiction, to that person. (2) The Judicial Commission must not disclose any information in a report under subsection (1) if disclosure of that information is contrary to the public interest having regard to the disclosure considerations. Division 3—Report as to removal of non-judicial member of VCAT 120 Power to recommend removal of non-judicial member of VCAT on receiving report After receiving a report under section 34(5) that facts exist that could amount to proved misbehaviour or incapacity such as to warrant the removal of the officer from office, the Attorney-General, after consulting the President of VCAT, may recommend to the Governor in Council that the officer concerned be removed from office. 121 Power of Governor in Council to remove non-judicial member of VCAT The Governor in Council may remove a non-judicial member of VCAT from office on the recommendation of the Attorney-General under section 120 but not otherwise. -- 99 of 169 -- Part 8—Administration Judicial Commission of Victoria Act 2016 No. 16 of 2016 92 Authorised by the Chief Parliamentary Counsel Part 8—Administration Division 1—The Judicial Commission and the Board 122 Delegation by Judicial Commission (1) Subject to subsections (2) and (3), the Judicial Commission, by instrument, may delegate any of its functions under this Act or any other Act to— (a) the Director; or (b) a member of the Board; or (c) the members of a committee that consists of 2 or more members of the Board. (2) The following functions cannot be delegated to the Director— (a) the power of delegation under subsection (1); (b) the power to refer a matter to an investigating panel under section 13(3); (c) the power to refer a matter to the nominated head of jurisdiction or a nominated person under section 13(4); (d) the power to make a requirement under section 29; (e) the power to recommend that an officer concerned be stood down under section 98; (f) the power to recommend the appointment of a Director under section 128(1); (g) the power to recommend the removal of a Director under section 130; (h) the power to recommend the appointment of an acting Director under section 132; (i) the power to declare a person to be a vexatious complainant under section 140(1); -- 100 of 169 -- Part 8—Administration Judicial Commission of Victoria Act 2016 No. 16 of 2016 93 Authorised by the Chief Parliamentary Counsel (j) the power to revoke a declaration under section 140(5)(b). (3) The following functions cannot be delegated to a member of the Board or the members of a committee that consists of 2 or more members of the Board— (a) the power of delegation under subsection (1); (b) the power to refer a matter to an investigating panel under section 13(3); (c) the power to make a requirement under section 29; (d) the power to recommend that an officer concerned be stood down under section 98; (e) the power to recommend the appointment of a Director under section 128(1); (f) the power to recommend the removal of a Director under section 130; (g) the power to recommend the appointment of an acting Director under section 132; (h) the power to declare a person to be a vexatious complainant under section 140(1); (i) the power to revoke a declaration under section 140(5)(b). Note The Judicial Commission and the Board of the Judicial Commission are established under Part IIIAA of the Constitution Act 1975. 123 Acting judicial members of the Board (1) A person nominated by a judicial member of the Board (the nominee of that member) may act as a judicial member of the Board in the absence of the judicial member. -- 101 of 169 -- Part 8—Administration Judicial Commission of Victoria Act 2016 No. 16 of 2016 94 Authorised by the Chief Parliamentary Counsel (2) The nominee of a judicial member of the Board must be— (a) in the case of the nominee of the President of VCAT—a Vice President or Deputy President of VCAT; or (b) in the case of the nominee of any other judicial member—a judicial officer of the jurisdiction of that member. (3) While a nominee is acting in the absence of a judicial member of the Board— (a) the nominee may exercise any of the functions of the judicial member; and (b) a reference in this Division to the judicial member is to be read as a reference to the nominee. 124 Acting appointed members of the Board (1) The Governor in Council may appoint a person to act as an appointed member of the Board. (2) An acting appointed member of the Board may act in the office of an appointed member— (a) during a vacancy in that office; or (b) during a period or all periods when the person holding that office— (i) is absent from duty; or (ii) for any other reason, is unable to perform the duties of that office. (3) A person appointed as an acting appointed member of the Board must be a person who would be eligible for appointment as an appointed member of the Board. (4) An acting appointed member of the Board holds office on the terms and conditions specified in the instrument of appointment. -- 102 of 169 -- Part 8—Administration Judicial Commission of Victoria Act 2016 No. 16 of 2016 95 Authorised by the Chief Parliamentary Counsel (5) An acting appointed member of the Board is entitled to the remuneration and allowances determined by the Governor in Council. (6) An acting appointed member of the Board may resign by delivering a signed letter of resignation to the Governor. (7) The Governor in Council may at any time remove an acting appointed member of the Board from office. 125 Meetings of the Board (1) The Chief Justice is the chairperson of the Board. (2) A meeting of the Board must be chaired by— (a) the Chief Justice; or (b) if the Chief Justice is unable to participate at the meeting and the Chief Justice's nominee is present at the meeting, the nominee; or (c) if both the Chief Justice and a nominee of the Chief Justice are unable to participate at the meeting, a member of the Board elected by the members present at the meeting. (3) The quorum for a meeting of the Board is 7 members of the Board, of whom— (a) at least 4 must be judicial members of the Board; and (b) at least 2 must be appointed members. (4) If the Chief Justice is the subject of a complaint or referral that is to be considered at a meeting of the Board, the next most senior Judge of the Supreme Court who is available to attend may attend and vote at the meeting. (5) A person referred to in subsection (4) may be, but need not be, a nominee of the Chief Justice. -- 103 of 169 -- Part 8—Administration Judicial Commission of Victoria Act 2016 No. 16 of 2016 96 Authorised by the Chief Parliamentary Counsel (6) A member of the Board may participate in a meeting by telephone, video conference or any similar means of communication. 126 Decisions and proceedings of the Board (1) A question arising at a meeting of the Board is determined by a majority of the votes of the members present and voting on the question. (2) The person chairing a meeting of the Board has a deliberative vote and, in the event of an equal number of votes on any question, a second or casting vote. (3) Subject to section 125(4) and (5), a judicial member of the Board must not participate in the deliberations by the Board about a complaint or referral if the judicial member is the subject of the complaint or referral. (4) A nominee of a judicial member of the Board must not participate in the deliberations by the Board about a complaint or referral if— (a) the nominee is the subject of the complaint or referral; or (b) the judicial member who nominated the nominee is the subject of the complaint or referral. (5) Subject to this Act, the Board may regulate its own proceedings. 127 Application of provisions of Part 5 of the Public Administration Act 2004 (1) The Board may determine, in writing, that the Judicial Commission is to be bound by any or all of the provisions of Division 4 of Part 5 of the Public Administration Act 2004, as if it were a public entity within the meaning of that Act. -- 104 of 169 -- Part 8—Administration Judicial Commission of Victoria Act 2016 No. 16 of 2016 97 Authorised by the Chief Parliamentary Counsel (2) A determination may specify that the provision is to apply with the modification specified in the determination. (3) If a determination is made, the provision applies to the Judicial Commission with any modification specified in the determination. (4) The Board may from time to time vary a determination made under subsection (1). (5) A copy of a determination, or a variation to a determination, made under this section must be given to the Premier within a reasonable time after it is made. Division 2—Director and staff of Judicial Commission 128 Appointment of Director (1) On the recommendation of the Board, the Chief Executive Officer of Court Services Victoria must appoint a person to be the Director of the Judicial Commission. (2) The Director must be employed under Part 3 of the Public Administration Act 2004. (3) The following persons are not eligible for appointment as the Director— (a) a person who is, or has been, a judicial officer, non-judicial member of VCAT or member of a prescribed tribunal; (b) a person who is, or has been, a judge, associate judge, master or magistrate (by whatever name called) of an Australian court; (c) a person who is, or has been, the holder of an office equivalent to the office of judicial registrar in an Australian court. -- 105 of 169 -- Part 8—Administration Judicial Commission of Victoria Act 2016 No. 16 of 2016 98 Authorised by the Chief Parliamentary Counsel (4) The employment of the Director is on the terms and conditions (including remuneration and allowances) fixed by the Board. (5) In fixing the remuneration of the Director, the Board must comply with any guidelines issued by the State in relation to executive remuneration for public entities in the public sector. (6) Section 15 of the Public Administration Act 2004 does not apply to employment of the Director to the extent that it is inconsistent with this Division. 129 Functions of Director (1) The Director is responsible for the administration of the Judicial Commission. (2) The functions of the Director include providing administrative assistance to any investigating panels appointed. (3) In performing the functions of the Director, the Director is responsible to, and must comply with any directions given by— (a) the Board in relation to the operation of the Judicial Commission; and (b) the Chief Executive Officer of Court Services Victoria in relation to all other matters. 130 Removal of Director from office (1) The Board may recommend to the Chief Executive Officer of Court Services Victoria that the Director be removed from office on any of the following grounds— (a) misconduct; (b) neglect of duty; (c) inability to perform the duties of the office; -- 106 of 169 -- Part 8—Administration Judicial Commission of Victoria Act 2016 No. 16 of 2016 99 Authorised by the Chief Parliamentary Counsel (d) any other ground on which the Board is satisfied that the Director is unfit to hold office. (2) The Chief Executive Officer of Court Services Victoria must remove the Director from office if— (a) the Board makes a recommendation under subsection (1); or (b) the Director becomes insolvent under administration; or (c) the Director is convicted, or found guilty, of an indictable offence or an offence that, if committed in Victoria, would be an indictable offence. (3) The Chief Executive Officer of Court Services Victoria must not remove the Director from the office of Director except as provided in this section. 131 Delegation by Director The Director, by instrument, may delegate to a member of the staff of the Judicial Commission any of the Director's functions other than this power of delegation. 132 Acting Director (1) On the recommendation of the Board, the Chief Executive Officer of Court Services Victoria may appoint a person to act in the office of the Director— (a) during a vacancy in that office; or (b) during a period or all periods when the person holding that office— (i) is absent from duty; or -- 107 of 169 -- Part 8—Administration Judicial Commission of Victoria Act 2016 No. 16 of 2016 100 Authorised by the Chief Parliamentary Counsel (ii) for any other reason, is unable to perform the functions of that office. (2) An appointment under subsection (1) is— (a) on the terms and conditions fixed by the Chief Executive Officer; and (b) for the period, not exceeding 12 months, specified in the instrument of appointment. 133 Engagement of consultants The Judicial Commission may engage persons with suitable qualifications and experience as consultants to the Judicial Commission either in an honorary capacity or for remuneration. Division 3—Guidelines and reports 134 Guidelines (1) The Judicial Commission may make guidelines about— (a) standards of ethical and professional conduct expected of judicial officers and non-judicial members of VCAT; and (b) the practices that should be adopted by judicial officers and non-judicial members of VCAT in relation to the performance of their functions; and Example Examples of practices that should be adopted may include matters such as recommendations to judicial officers and non-judicial members of VCAT as to how to deal with— • self-represented litigants; or • victims and their families; or • counsel appearing before the officer. -- 108 of 169 -- Part 8—Administration Judicial Commission of Victoria Act 2016 No. 16 of 2016 101 Authorised by the Chief Parliamentary Counsel (c) the performance of functions conferred by or under this or any other Act by the Judicial Commission or an investigating panel in respect of complaints or referrals; and (d) the making of complaints or referrals; and (e) the assistance to be provided by the Director and staff of the Judicial Commission to any investigating panel; and (f) the use of coercive powers under this Act; and (g) the matters to be considered by an investigating panel for the purposes of determining whether a hearing should be open to the public under section 62(3); and (h) any other matters that the Judicial Commission considers appropriate. (2) The Judicial Commission must ensure that guidelines made under subsection (1) are published on an Internet site maintained by the Judicial Commission. (3) The Judicial Commission must ensure that guidelines are not inconsistent with this Act or any regulations made under this Act. (4) If the guidelines are inconsistent with the Act or regulations, the Act or regulations prevail to the extent of the inconsistency. 135 Annual report of the Judicial Commission (1) The Judicial Commission must include the following information in its annual report of operations under Part 7 of the Financial Management Act 1994 in respect of each financial year— (a) the number of complaints and referrals received by the Judicial Commission; -- 109 of 169 -- Part 8—Administration Judicial Commission of Victoria Act 2016 No. 16 of 2016 102 Authorised by the Chief Parliamentary Counsel (b) the time taken to deal with complaints and referrals; (c) the number of complaints and referrals dismissed by the Judicial Commission; (d) the number of complaints and referrals referred by the Judicial Commission to a nominated head of jurisdiction or a nominated person; (e) the number of complaints and referrals referred to an investigating panel; (f) information relating to the exercise of the powers under Part 5 by any investigating panel, including the following— (i) the number of search warrants issued by the Supreme Court on the application of an investigating panel under section 84; (ii) the number of hearings held by investigating panels and whether each hearing was held in public or private; (iii) the number of notices issued under section 69 requiring the production of a document or thing; (iv) the number of witness summonses under section 70; (v) the number of claims for privilege determined by the Supreme Court under section 95; (g) information as to the outcome of investigations by any investigating panels appointed including the following— (i) the number of matters dismissed and the grounds on which those matters were dismissed; -- 110 of 169 -- Part 8—Administration Judicial Commission of Victoria Act 2016 No. 16 of 2016 103 Authorised by the Chief Parliamentary Counsel (ii) the number of reports made under section 34(4) or (5); (iii) the number of referrals made under section 34(3); (h) the number of notifications made to the IBAC under section 25 or 48; (i) the number of notifications made to the Victorian Inspectorate under section 26 or 49; (j) an analysis of the nature and scope of complaints and referrals received or investigated; (k) the number of declarations made by the Judicial Commission under section 140. Note See also section 69 of the Protected Disclosure Act 2012 for other matters that must be included in the Judicial Commission's annual report. (2) The information referred to in subsection (1) must not identify an officer concerned unless— (a) an investigating panel has made a report under section 34(4) or (5); or (b) identifying the officer concerned is in the public interest, having regard to the disclosure considerations. (3) The Judicial Commission must not include in its annual report any information that— (a) is likely to lead to the identification of a person who has made an assessable disclosure; and (b) is not information to which section 53(2)(a), (c) or (d) of the Protected Disclosure Act 2012 applies. -- 111 of 169 -- Part 8—Administration Judicial Commission of Victoria Act 2016 No. 16 of 2016 104 Authorised by the Chief Parliamentary Counsel Division 4—Miscellaneous 136 Immunity of members of the Board (1) A judicial member or appointed member of the Board is not personally liable for anything necessarily or reasonably done or omitted to be done in good faith— (a) in the exercise of a power or the performance of a function under this Act or the regulations; or (b) in the reasonable belief that the act or omission was in the exercise of a power or the performance of a function under this Act or the regulations. (2) Any liability resulting from an act or omission that would, but for subsection (1), attach to the judicial member or appointed member of the Board attaches instead to the Judicial Commission. (3) When exercising a power or performing a function under this Act or the regulations in a member's capacity as a judicial member of the Board, a judicial member of the Board has the same immunity and protection that would apply to the member in the performance or exercise of an administrative function or power conferred on the member in their capacity as a judge, magistrate, coroner or judicial member of VCAT (as the case may be). Note See section 24D of the Supreme Court Act 1986, section 9A of the County Court Act 1958, section 14 of the Magistrates' Court Act 1989, section 512 of the Children, Youth and Families Act 2005, section 101(1) of the Coroners Act 2008 and section 143(1) of the Victorian Civil and Administrative Tribunal Act 1998. -- 112 of 169 -- Part 8—Administration Judicial Commission of Victoria Act 2016 No. 16 of 2016 105 Authorised by the Chief Parliamentary Counsel 137 Immunity of member of an investigating panel A member of an investigating panel has, in the performance of the member's duties as a member of an investigating panel, the same protection and immunity as a Judge of the Supreme Court has in the performance of the Judge's duties as a Judge. 138 Use and disclosure of information (1) A relevant person who obtains or receives information in the course of or as a result of the performance of the functions of the Judicial Commission or an investigating panel in relation to complaints or referrals may disclose that information— (a) for the purposes of the performance of the functions of the Judicial Commission or an investigating panel; or (b) for the purposes of the performance of the person's functions; or (c) for the purposes of the administration of justice; or (d) as required, authorised or permitted by this Act or the regulations; or (e) to the IBAC; or (f) to the Victorian Inspectorate; or (g) as otherwise required, authorised or permitted by law. (2) A relevant person who obtains or receives information in the course of or as a result of the performance of the functions of the Judicial Commission or an investigating panel in relation to complaints or referrals may disclose that information to Victoria Police or any other law enforcement agency, a regulatory body or an -- 113 of 169 -- Part 8—Administration Judicial Commission of Victoria Act 2016 No. 16 of 2016 106 Authorised by the Chief Parliamentary Counsel integrity body to the extent reasonably required for one or more of the following— (a) the prevention, detection, investigation, prosecution or punishment of criminal offences or breaches of law; (b) the enforcement of laws relating to the confiscation of the proceeds of crime; (c) the protection of the public revenue; (d) the lessening or prevention of— (i) a serious and imminent threat to an individual's life, health, safety or welfare; or (ii) a serious threat to public health, public safety or public welfare; or (e) the prevention, detection, investigation or remedying of improper conduct; (f) the preparation for, or conduct of, proceedings before any court or tribunal, or implementation of the orders of a court or tribunal. (3) A relevant person must not use or disclose confidential information obtained or received in the course of or as a result of the performance of the functions of the Judicial Commission or an investigating panel in relation to complaints or referrals except in the circumstances permitted by subsections (1) and (2). (4) Subject to subsection (5), a relevant person must not use or disclose information in the circumstances otherwise permitted by subsection (1) or (2) that is likely to lead to the identification of a person who has made an assessable disclosure. -- 114 of 169 -- Part 8—Administration Judicial Commission of Victoria Act 2016 No. 16 of 2016 107 Authorised by the Chief Parliamentary Counsel (5) A relevant person may use or disclose information under subsection (1) or (2) to which section 53(2)(a), (c) or (d) of the Protected Disclosure Act 2012 applies. (6) In this section— relevant person means— (a) a Judicial Commission officer or former Judicial Commission officer; or (b) a member or former member of an investigating panel; or (c) a prescribed person. 139 Release of information to public (1) If the Judicial Commission is of the opinion that it is in the public interest, the Judicial Commission may publish information about— (a) the performance of any functions of the Judicial Commission or an investigating panel under this Act including in relation to a particular complaint or referral; and (b) any other action under this Act by a nominated head of jurisdiction, nominated person or officer concerned. (2) In determining whether to make a public disclosure under subsection (1), the Judicial Commission must have regard to the disclosure considerations. -- 115 of 169 -- Part 9—General Judicial Commission of Victoria Act 2016 No. 16 of 2016 108 Authorised by the Chief Parliamentary Counsel Part 9—General 140 Vexatious complainants (1) The Judicial Commission may declare a person to be a vexatious complainant if the person persistently and without reasonable grounds makes complaints, whether about one person who is a judicial officer or non-judicial member of VCAT or more than one such person. (2) The Judicial Commission must notify the person in respect of whom a declaration under subsection (1) is to be made and give the person a reasonable opportunity to make a submission to the Judicial Commission about the proposed declaration within a specified time. (3) In making a declaration under subsection (1), the Judicial Commission must have regard to any submission made within the time specified in the notice under subsection (2). (4) The Judicial Commission must notify the person in respect of whom a declaration under subsection (1) is made as soon as possible after making the declaration. (5) The Judicial Commission may— (a) suspend a declaration made under subsection (1) for a period of time; or (b) revoke a declaration made under subsection (1). (6) The Judicial Commission must notify the person in respect of whom a declaration made under subsection (1) is suspended or revoked as soon as possible after the suspension or revocation. (7) A declaration made under subsection (1) remains in force until the Judicial Commission revokes the declaration. -- 116 of 169 -- Part 9—General Judicial Commission of Victoria Act 2016 No. 16 of 2016 109 Authorised by the Chief Parliamentary Counsel (8) If the Judicial Commission suspends a declaration made under subsection (1) for a period of time, the declaration ceases to be in force for the period during which it is suspended. Note A complaint or referral made by a vexatious complainant must be dismissed—see sections 16(2)(a) and 35(1)(a). 141 Offence to make statement which is false or misleading A person must not wilfully make a statement that the person knows to be false or misleading in a material particular or mislead or attempt to mislead the Judicial Commission or an investigating panel in the exercise of the powers of the Judicial Commission or an investigating panel under this Act or the regulations. Penalty: 120 penalty units or imprisonment for 12 months or both. 142 Disclosure of information The answering of a question, giving of information or production of a document or other thing to the Judicial Commission or an investigating panel in any of the following circumstances does not constitute a breach of a provision of an Act or any regulations or rules made under an Act prohibiting the disclosure of information of that kind— (a) making a complaint under section 5 or 6; (b) making a referral under section 7 or 8; (c) in accordance with a request by the Judicial Commission under section 27 or 28; (d) in accordance with a request or requirement by an investigating panel under section 54 or 69; -- 117 of 169 -- Part 9—General Judicial Commission of Victoria Act 2016 No. 16 of 2016 110 Authorised by the Chief Parliamentary Counsel (e) in accordance with a search warrant under section 84 or a witness summons. 143 Exemption from Freedom of Information Act 1982 (1) The Freedom of Information Act 1982 does not apply to a document that is in the possession of any person or body to the extent to which the document discloses information that relates to— (a) a complaint or referral; or (b) an investigation, recommendation or referral under Part 2, 3, 4 or 5. (2) In this section— document has the meaning as in the Freedom of Information Act 1982. 144 Exemption from Health Records Act 2001 Part 5 and Health Privacy Principle 6 of the Health Records Act 2001 do not apply to a document or any information held by the Judicial Commission or an investigating panel under this Act that relates to— (a) a complaint or referral; or (b) an investigation, recommendation or referral under Part 2, 3, 4 or 5. 145 Exemption from Privacy and Data Protection Act 2014 Information Privacy Principle 6 of the Privacy and Data Protection Act 2014 does not apply to a document or any information held by the Judicial Commission or an investigating panel under this Act that relates to— (a) a complaint or referral; or (b) an investigation, referral or report under Part 2, 3, 4 or 5. -- 118 of 169 -- Part 9—General Judicial Commission of Victoria Act 2016 No. 16 of 2016 111 Authorised by the Chief Parliamentary Counsel 146 Regulations (1) The Governor in Council may make regulations for or with respect to the following— (a) prescribing a tribunal of another State or Territory, or a tribunal created by the Parliament of the Commonwealth, for the purposes of this Act; (b) prescribing the form and content of a witness summons; (c) prescribing by scale or otherwise the allowances for compliance with a witness summons; (d) prescribing the form and content of a direction made under section 75; (e) prescribing information that may be disclosed or released under this Act; (f) generally prescribing any other matter or thing required or permitted by this Act to be prescribed to give effect to this Act. (2) The regulations may— (a) be of general or limited application; and (b) differ according to differences in time, place or circumstances; and (c) confer a discretionary authority or impose a duty on a specified person or body or specified class of persons or bodies; and (d) apply, adopt or incorporate any matter contained in any document, code, standard, rule, specification or method formulated, issued, prescribed or published by any person, whether— (i) wholly or partially or as amended by the regulations; or -- 119 of 169 -- Part 9—General Judicial Commission of Victoria Act 2016 No. 16 of 2016 112 Authorised by the Chief Parliamentary Counsel (ii) as formulated, amended, issued, prescribed or published at the time the regulations are made or at any time before then; or (iii) as formulated, amended, issued, prescribed or published from time to time. 147 Savings and transitional provisions Schedule 2 has effect. -- 120 of 169 -- Part 10—Amendment of Constitution Act 1975 Judicial Commission of Victoria Act 2016 No. 16 of 2016 113 Authorised by the Chief Parliamentary Counsel Part 10—Amendment of Constitution Act 1975 148 Repeal of section 81A(2) Section 81A(2) of the Constitution Act 1975 is repealed. 149 As to pensions of Judges of the Supreme Court and their partners and children After section 83(22) of the Constitution Act 1975 insert— "(23) For the purposes of this section, a reference to the resignation or retirement of a Judge of the Court includes a reference to the removal of a Judge from office by the Governor in Council under section 87AAB on the ground of proved incapacity if both Houses of the Parliament pray for the removal solely on the ground of proved incapacity. (24) A removal referred to in subsection (23) is taken to be a resignation or retirement due to the Judge of the Court having become afflicted with some permanent incapacity disabling the Judge from the due execution of the Judge's office.". 150 Judges not to hold any other place of profit Before section 84(5) of the Constitution Act 1975 insert— "(4B) Subsection (1) does not apply to or in relation to a Judge appointed to an investigating panel under section 87AAS.". -- 121 of 169 -- Part 10—Amendment of Constitution Act 1975 Judicial Commission of Victoria Act 2016 No. 16 of 2016 114 Authorised by the Chief Parliamentary Counsel 151 New Division heading inserted After the heading to Part IIIAA of the Constitution Act 1975 insert the following heading— "Division 1—Preliminary". 152 Definitions (1) In section 87AAA of the Constitution Act 1975 insert the following definitions— "appointed member, of the Board, means a member of the Board appointed under section 87AAO; Australian court has the same meaning as in the Judicial Commission of Victoria Act 2016; Board means the Board of the Judicial Commission established under section 87AAM; complaint has the same meaning as in the Judicial Commission of Victoria Act 2016; investigating panel means a panel appointed by the Judicial Commission under Division 5; Judicial Commission means the Judicial Commission of Victoria established by section 87AAK; judicial member, of the Board, means a member of the Board referred to in section 87AAN; judicial officer means the following— (a) a Judge of the Court; (b) a reserve Judge; (c) an Associate Judge; (d) a reserve Associate Judge; -- 122 of 169 -- Part 10—Amendment of Constitution Act 1975 Judicial Commission of Victoria Act 2016 No. 16 of 2016 115 Authorised by the Chief Parliamentary Counsel (e) a Judge or reserve Judge of the Supreme Court who is appointed or assigned to VCAT; (f) a judge of the County Court; (g) a reserve judge within the meaning of the County Court Act 1958; (h) an associate judge of the County Court appointed under section 17A of the County Court Act 1958; (i) a reserve associate judge within the meaning of the County Court Act 1958; (j) a person referred to in paragraph (f) or (g) who is appointed or assigned to VCAT; (k) a magistrate; (l) a reserve magistrate within the meaning of the Magistrates' Court Act 1989; (m) a magistrate or reserve magistrate who is appointed or assigned to the Children's Court, the Coroners Court or VCAT; (n) a reserve coroner within the meaning of the Coroners Act 2008; (o) a person appointed under section 94 of the Coroners Act 2008; (p) a judicial registrar; judicial registrar means a judicial registrar of the Supreme Court, the County Court, the Magistrates' Court, the Children's Court or the Coroners Court; -- 123 of 169 -- Part 10—Amendment of Constitution Act 1975 Judicial Commission of Victoria Act 2016 No. 16 of 2016 116 Authorised by the Chief Parliamentary Counsel member, in relation to VCAT, has the same meaning as in section 3 of the Victorian Civil and Administrative Tribunal Act 1998; non-judicial member of VCAT means a member of VCAT who is not a judicial officer; protected disclosure complaint means a disclosure that the IBAC has determined under section 26 of the Protected Disclosure Act 2012 to be a protected disclosure complaint; referral has the same meaning as in the Judicial Commission of Victoria Act 2016; Victorian court has the same meaning as in the Judicial Commission of Victoria Act 2016.". (2) In section 87AAA of the Constitution Act 1975 the definitions of investigating committee, panel and qualifying office are repealed. (3) At the end of section 87AAA of the Constitution Act 1975 insert— "(2) In this Part, other than in section 87AAJ, a reference to the holder of a judicial office includes a reference to the following— (a) a reserve Judge; (b) a reserve Associate Judge; (c) a reserve judge within the meaning of the County Court Act 1958; (d) a reserve associate judge within the meaning of the County Court Act 1958; (e) a reserve magistrate within the meaning of the Magistrates' Court Act 1989; -- 124 of 169 -- Part 10—Amendment of Constitution Act 1975 Judicial Commission of Victoria Act 2016 No. 16 of 2016 117 Authorised by the Chief Parliamentary Counsel (f) a reserve coroner within the meaning of the Coroners Act 2008; (g) a person appointed under section 94 of the Coroners Act 2008; (h) a judicial registrar.". 153 New Division heading inserted After section 87AAA of the Constitution Act 1975 insert the following heading— "Division 2—Judicial offices". 154 Removal from judicial office In section 87AAB(2) of the Constitution Act 1975, for "an investigating committee appointed under section 87AAD" substitute "an investigating panel". 155 Repeal of sections 87AAC to 87AAH Sections 87AAC, 87AAD, 87AAE, 87AAF, 87AAG and 87AAH of the Constitution Act 1975 are repealed. 156 New Divisions 3 to 6 of Part IIIAA inserted After section 87AAJ of the Constitution Act 1975 insert— "Division 3—Judicial Commission of Victoria 87AAK Establishment of Judicial Commission (1) The Judicial Commission of Victoria is established. (2) The Judicial Commission— (a) is a body corporate with perpetual succession; and (b) must have an official seal; and -- 125 of 169 -- Part 10—Amendment of Constitution Act 1975 Judicial Commission of Victoria Act 2016 No. 16 of 2016 118 Authorised by the Chief Parliamentary Counsel (c) may sue and be sued in its corporate name; and (d) may acquire, hold and dispose of personal property; and (e) subject to this Act, may do and suffer all acts and things that a body corporate may by law do and suffer. (3) The official seal of the Judicial Commission must be kept as directed by the Judicial Commission and must not be used except as authorised by the Judicial Commission. Note The Judicial Commission is an exempt body: see section 4(1) of the Public Administration Act 2004. 87AAL Functions of the Judicial Commission (1) The Judicial Commission has the following functions— (a) professional standards functions, being to make guidelines regarding the standards of ethical and professional conduct and general standards of appropriate conduct expected of judicial officers and non-judicial members of VCAT; (b) complaints handling functions, being the receipt, investigation and referral of complaints and referrals regarding judicial officers and non-judicial members of VCAT, including disclosures made under the Protected Disclosure Act 2012; (c) to provide support to any investigating panel to assist the investigating panel in the performance of its functions; -- 126 of 169 -- Part 10—Amendment of Constitution Act 1975 Judicial Commission of Victoria Act 2016 No. 16 of 2016 119 Authorised by the Chief Parliamentary Counsel (d) to disseminate information and educate the public about the functions of the Judicial Commission and investigating panels; (e) any other function conferred on the Judicial Commission by or under this or any other Act. (2) The Judicial Commission has all the powers necessary to perform its functions, including any power conferred on it by or under this or any other Act. Division 4—Board of Judicial Commission 87AAM Board of Judicial Commission (1) The Judicial Commission is to have a governing body called a Board. (2) The Board is responsible for— (a) performing the functions of the Judicial Commission; and (b) exercising the powers of the Judicial Commission. (3) The Board consists of— (a) the judicial members of the Board; and (b) 4 members appointed under section 87AAO. 87AAN Judicial members of the Board (1) The judicial members of the Board are— (a) the Chief Justice; and (b) the Chief Judge; and (c) the Chief Magistrate; and -- 127 of 169 -- Part 10—Amendment of Constitution Act 1975 Judicial Commission of Victoria Act 2016 No. 16 of 2016 120 Authorised by the Chief Parliamentary Counsel (d) the President of the Children's Court; and (e) the State Coroner; and (f) the President of VCAT. (2) A judicial member of the Board is entitled to the allowances determined by the Governor in Council but is not entitled to remuneration. 87AAO Appointed members of the Board (1) The Governor in Council may appoint a person to be a member of the Board on the recommendation of the Attorney-General. (2) The Attorney-General may recommend a person of high standing in the community, other than a person— (a) who is, or has been a judicial officer, non-judicial member of VCAT or member of a prescribed tribunal; or (b) who is, or has been a judge, associate judge, master or magistrate (by whatever name called) of an Australian court (other than a Victorian court); or (c) who is, or has been the holder of an office equivalent to the office of judicial registrar in an Australian court; or (d) who is, or has been an Australian legal practitioner; or (e) who is a member of the Parliament of Victoria or the Parliament of the Commonwealth or of another State or a member of the Legislative Assembly of the Australian Capital Territory or the Northern Territory; or -- 128 of 169 -- Part 10—Amendment of Constitution Act 1975 Judicial Commission of Victoria Act 2016 No. 16 of 2016 121 Authorised by the Chief Parliamentary Counsel (f) who is employed under Part 3 of the Public Administration Act 2004. (3) An appointed member of the Board holds office— (a) on the terms and conditions specified in the instrument of appointment; and (b) for the period, not exceeding 5 years, specified in the instrument of appointment. (4) An appointed member of the Board is eligible for reappointment, but must not hold office as a member of the Board for a period, or an aggregate of periods, exceeding 10 years. (5) An appointed member of the Board is entitled to the remuneration and allowances determined by the Governor in Council. 87AAP Suspension of appointed member (1) The Attorney-General may recommend to the Governor in Council that an appointed member of the Board be suspended if the Attorney-General is of the opinion that the member— (a) is mentally or physically incapable of satisfactorily performing functions as a member of the Board; or (b) is guilty of improper conduct in performing functions as a member of the Board; or (c) has failed to attend 3 consecutive meetings of the Board without reasonable excuse; or -- 129 of 169 -- Part 10—Amendment of Constitution Act 1975 Judicial Commission of Victoria Act 2016 No. 16 of 2016 122 Authorised by the Chief Parliamentary Counsel (d) has otherwise engaged in improper conduct of a nature or seriousness that is incompatible with the person continuing to hold office as a member of the Board. (2) The Governor in Council may suspend an appointed member of the Board from office on the recommendation of the Attorney-General under subsection (1). (3) If an appointed member of the Board is suspended from office, the Attorney-General must cause a full statement of the grounds of the suspension to be laid before each House of Parliament within 7 sitting days of that House suspension. (4) The Governor in Council must remove the appointed member from office if each House of the Parliament within 20 sitting days of that House after the statement is laid before it passes a resolution calling for the member's removal from office. (5) The Governor in Council must remove the suspension unless each House of the Parliament, within 20 sitting days after the statement is laid before it, passes a resolution calling for the member's removal from office. 87AAQ Cessation of appointment of appointed member (1) An appointed member of the Board ceases to hold office if the appointed member— (a) is removed from office by the Governor in Council in accordance with section 87AAP(4); or -- 130 of 169 -- Part 10—Amendment of Constitution Act 1975 Judicial Commission of Victoria Act 2016 No. 16 of 2016 123 Authorised by the Chief Parliamentary Counsel (b) is found guilty of an indictable offence or an offence that, if committed in Victoria, would be an indictable offence; or (c) becomes an insolvent under administration; or (d) nominates for election for a House of the Parliament of Victoria or of the Parliament of the Commonwealth or of another State or of a Territory; or (e) delivers a signed letter of resignation to the Governor; or (f) becomes— (i) a judicial officer, non-judicial member of VCAT or member of a prescribed tribunal; or (ii) a judge, associate judge, master or magistrate (by whatever name called) of an Australian court; or (iii) the holder of an office equivalent to the office of judicial registrar in an Australian court; or (iv) an Australian legal practitioner; or (v) employed under Part 3 of the Public Administration Act 2004. (2) An appointed member of the Board must not be suspended or removed from office except in accordance with this Division. Division 5—Investigating panels 87AAR Appointment of investigating panels (1) The Judicial Commission may appoint an investigating panel for the purposes of investigating a complaint or referral referred -- 131 of 169 -- Part 10—Amendment of Constitution Act 1975 Judicial Commission of Victoria Act 2016 No. 16 of 2016 124 Authorised by the Chief Parliamentary Counsel to an investigating panel under section 13(3) of the Judicial Commission of Victoria Act 2016. (2) The Judicial Commission may appoint more than one investigating panel at any time for the purposes of the investigation of different complaints or referrals referred under section 13(3) of the Judicial Commission of Victoria Act 2016. (3) An investigating panel may investigate 2 or more complaints or referrals referred under section 13(3) of the Judicial Commission of Victoria Act 2016 if the Judicial Commission considers it appropriate in the circumstances. 87AAS Membership of investigating panel (1) An investigating panel consists of 3 members appointed by the Judicial Commission of whom— (a) one member must be a person appointed to the pool of persons under section 87AAW; and (b) one member must be a person who, at the time the person is appointed to the investigating panel— (i) has been but is no longer, a judicial officer; or (ii) has been but is no longer, a non-judicial member of VCAT or a member of a prescribed tribunal; or -- 132 of 169 -- Part 10—Amendment of Constitution Act 1975 Judicial Commission of Victoria Act 2016 No. 16 of 2016 125 Authorised by the Chief Parliamentary Counsel (iii) is the holder of an office referred to in paragraphs (a) to (g) of section 87AAA(2) and is not engaged to perform judicial duties; or (iv) has been but is no longer, a judge, associate judge, master or magistrate (by whatever name called) of an Australian court (other than a Victorian court); or (v) has been but is no longer, the holder of an office equivalent to the office of judicial registrar in an Australian court (other than a Victorian court); and (c) one member must be a person who is or has been— (i) a judicial officer; or (ii) a non-judicial member of VCAT or a member of a prescribed tribunal; or (iii) a judge, associate judge, master or magistrate (by whatever name called) of an Australian court (other than a Victorian court); or (iv) the holder of an office equivalent to the office of judicial registrar in an Australian court (other than a Victorian court). (2) A person must not be appointed under subsection (1) if the person— (a) is a member of the Board; or (b) does not consent to the appointment. -- 133 of 169 -- Part 10—Amendment of Constitution Act 1975 Judicial Commission of Victoria Act 2016 No. 16 of 2016 126 Authorised by the Chief Parliamentary Counsel (3) A person must not be appointed under subsection (1)(c) if the person is a judicial officer (other than a person who is a holder of an office referred to in paragraphs (a) to (g) of section 87AAA(2) and is not engaged to perform judicial duties) who is— (a) of the same court as the judicial officer who is the subject of the complaint or referral that is to be investigated by the panel; or (b) of a lower court than the judicial officer who is the subject of the complaint or referral that is being investigated by the panel. (4) A person who is, or has been, a judicial registrar or the holder of an equivalent office in an Australian court (other than a Victorian court) may only be appointed as a member of an investigating panel if the panel is investigating a complaint or referral that relates to a judicial registrar. (5) A person who is, or has been a non-judicial member of VCAT or a member of a prescribed tribunal may only be appointed as a member of an investigating panel if the panel is investigating a complaint or referral that relates to a non-judicial member of VCAT. (6) A person may be appointed to more than one investigating panel at the same time. 87AAT Remuneration and allowances of investigating panel members (1) A member of an investigating panel may, or may not, be entitled to remuneration and allowances as a panel member as provided in this section. -- 134 of 169 -- Part 10—Amendment of Constitution Act 1975 Judicial Commission of Victoria Act 2016 No. 16 of 2016 127 Authorised by the Chief Parliamentary Counsel (2) A member of an investigating panel is not entitled to remuneration for the performance of duties as a member of an investigating panel if— (a) the member is a judicial officer (other than a person who is the holder of an office referred to in paragraphs (a) to (g) of section 87AAA(2) and is not engaged to perform judicial duties); or (b) the member is a judge, associate judge, master or magistrate (by whatever name called) of an Australian Court (other than a Victorian court) who receives a salary in relation to that office. (3) A member of an investigating panel other than a member specified in subsection (2) is entitled to be remunerated for the performance of duties as a member of an investigating panel as if the member were appointed as a reserve Judge under section 81 and engaged to undertake the duties of a Judge of Appeal on a sessional basis under section 81B. Note See section 7 of the Judicial Entitlements Act 2015. (4) A member of an investigating panel is entitled to the prescribed allowances (if any). (5) The amounts payable to a person as a member of an investigating panel are to be paid out of the Consolidated Fund which is appropriated to the necessary extent. -- 135 of 169 -- Part 10—Amendment of Constitution Act 1975 Judicial Commission of Victoria Act 2016 No. 16 of 2016 128 Authorised by the Chief Parliamentary Counsel 87AAU Pension rights of investigating panel member not affected If a person who has been a Judge or Associate Judge of the Supreme Court, a judge or associate judge of the County Court or has been the Chief Magistrate is appointed as a member of an investigating panel, the appointment does not affect any pension or other rights or privileges the person has as a former Judge or Associate Judge of the Supreme Court, judge or associate judge of the County Court or Chief Magistrate. 87AAV Establishment of pool (1) For the purposes of making appointments under section 87AAS(1)(a) to an investigating panel there is to be a pool of persons. (2) The pool of persons must consist of no fewer than 3 persons appointed by the Governor in Council under section 87AAW. 87AAW Appointment of persons to pool (1) The Governor in Council may appoint a person to be a member of the pool of persons on the recommendation of the Attorney-General. (2) The Attorney-General may recommend a person of high standing in the community, other than a person— (a) who is or has been a judicial officer, non-judicial member of VCAT or member of a prescribed tribunal; or (b) who is or has been a judge, associate judge, master or magistrate (by whatever name called) of an Australian court (other than a Victorian court); or -- 136 of 169 -- Part 10—Amendment of Constitution Act 1975 Judicial Commission of Victoria Act 2016 No. 16 of 2016 129 Authorised by the Chief Parliamentary Counsel (c) who is or has been the holder of an office equivalent to the office of judicial registrar in an Australian court; or (d) who is or has been an Australian legal practitioner; or (e) who is a member of the Parliament of Victoria or the Parliament of the Commonwealth or of another State or a member of the Legislative Assembly of the Australian Capital Territory or the Northern Territory; or (f) who is employed under Part 3 of the Public Administration Act 2004. 87AAX Conditions for members of pool (1) A member of the pool of persons— (a) is a member of the pool for the period, not exceeding 5 years, specified in the instrument of appointment; and (b) may be reappointed as a member of the pool. (2) A member of an investigating panel whose membership of the pool expires by effluxion of time, or ceases under section 87AAY(1)(a), (b), (c), (d), (e), (f), (g) or (h), before the panel makes a decision under section 34 of the Judicial Commission of Victoria Act 2016 in respect of the matter it is investigating, remains a member of the panel until the panel makes such a decision. 87AAY Cessation of appointment or removal from pool (1) A member of the pool of persons appointed under section 87AAW ceases to be a member if the person— -- 137 of 169 -- Part 10—Amendment of Constitution Act 1975 Judicial Commission of Victoria Act 2016 No. 16 of 2016 130 Authorised by the Chief Parliamentary Counsel (a) becomes a judicial officer; or (b) becomes a judge, associate judge, master or magistrate (by whatever name called) of an Australian court (other than a Victorian court); or (c) becomes the holder of an office equivalent to the office of judicial registrar in an Australian court (other than a Victorian court); or (d) becomes a non-judicial member of VCAT or member of a prescribed tribunal; or (e) becomes a member of the Parliament of Victoria or of the Parliament of the Commonwealth or of another State or Territory; or (f) becomes employed under Part 3 of the Public Administration Act 2004; or (g) becomes an Australian legal practitioner; or (h) becomes a member of the Board; or (i) delivers a signed letter of resignation to the Governor; or (j) is found guilty of— (i) an indictable offence; or (ii) an offence that, if committed in Victoria, would be an indictable offence; or (k) becomes an insolvent under administration. -- 138 of 169 -- Part 10—Amendment of Constitution Act 1975 Judicial Commission of Victoria Act 2016 No. 16 of 2016 131 Authorised by the Chief Parliamentary Counsel (2) The Judicial Commission may make a recommendation to the Attorney-General for the removal of a member from the pool of persons. (3) The Governor in Council may remove a member from the pool of persons on the recommendation of the Attorney-General. (4) The Attorney-General and the Judicial Commission must not make a recommendation under subsection (2) or (3) unless the Attorney-General and the Judicial Commission (as appropriate) is satisfied that that the member of the pool of persons— (a) is mentally or physically incapable of satisfactorily carrying out the member's functions as a member of the pool; or (b) has engaged in improper conduct of a nature or seriousness that is incompatible with being a member of the pool. Division 6—Judicial Commission regulations 87AAZ Judicial Commission regulations (1) The Governor in Council may make regulations for or with respect to the following— (a) prescribing the allowances of persons appointed as members of an investigating panel; (b) prescribing a tribunal of another State or Territory, or a tribunal created by the Parliament of the Commonwealth, for the purposes of Divisions 3, 4 and 5; -- 139 of 169 -- Part 10—Amendment of Constitution Act 1975 Judicial Commission of Victoria Act 2016 No. 16 of 2016 132 Authorised by the Chief Parliamentary Counsel (c) generally prescribing any other matter or thing required or permitted by Divisions 3, 4 and 5 to be prescribed to give effect to those Divisions.". -- 140 of 169 -- Part 11—Amendment of other Acts Judicial Commission of Victoria Act 2016 No. 16 of 2016 133 Authorised by the Chief Parliamentary Counsel Part 11—Amendment of other Acts Division 1—Amendment of Court Services Victoria Act 2014 157 Definitions In section 3 of the Court Services Victoria Act 2014— (a) in paragraph (f) of the definition of member of the staff, for "2001" substitute "2001; or"; (b) after paragraph (f) of the definition of member of the staff insert— "(g) the Director of the Judicial Commission."; (c) insert the following definition— "Judicial Commission has the same meaning as it has in Part IIIAA of the Constitution Act 1975;". 158 Function of Court Services Victoria In section 8 of the Court Services Victoria Act 2014— (a) in paragraph (b), for "functions." substitute "functions; and"; (b) after paragraph (b) insert— "(c) to enable the Judicial Commission to perform its functions.". 159 Functions and powers (1) In section 25(1)(b) of the Court Services Victoria Act 2014, for "the appointment and" substitute "subject to subsection (1A), the appointment and". -- 141 of 169 -- Part 11—Amendment of other Acts Judicial Commission of Victoria Act 2016 No. 16 of 2016 134 Authorised by the Chief Parliamentary Counsel (2) After section 25(1) of the Court Services Victoria Act 2014 insert— "(1A) In performing the management function of the Chief Executive Officer under subsection (1)(b), the Chief Executive Officer must not interfere with the performance of functions and the exercise of powers delegated by the Judicial Commission to the Director of the Judicial Commission.". 160 Budget (1) In section 41(3)(b) of the Court Services Victoria Act 2014, after "of Victoria" insert "and the Judicial Commission". (2) In section 41(6) of the Court Services Victoria Act 2014— (a) after "of Victoria" (where first occurring) insert "or the Judicial Commission"; (b) after "of Victoria" (where secondly occurring) insert "or the approval of the Board of the Judicial Commission". Division 2—Amendment of Independent Broad- based Anti-corruption Commission Act 2011 161 Definitions (1) In section 3(1) of the Independent Broad-based Anti-corruption Commission Act 2011— (a) after paragraph (b) of the definition of integrity body insert— "(ba) the Judicial Commission;"; (b) after paragraph (f) of the definition of notification to the IBAC insert— "(fa) a notification under section 25 or 48 of the Judicial Commission of Victoria Act 2016;"; -- 142 of 169 -- Part 11—Amendment of other Acts Judicial Commission of Victoria Act 2016 No. 16 of 2016 135 Authorised by the Chief Parliamentary Counsel (c) insert the following definitions— "investigating panel has the same meaning as it has in Part IIIAA of the Constitution Act 1975; Judicial Commission has the same meaning as it has in Part IIIAA of the Constitution Act 1975;". (2) In section 3(1) of the Independent Broad-based Anti-corruption Commission Act 2011, in the definition of mandatory notification provision, after paragraph (e) insert— "(ea) section 25 of the Judicial Commission of Victoria Act 2016;". 162 Definitions of public body, public officer and public sector (1) In section 6(1) of the Independent Broad-based Anti-corruption Commission Act 2011, in the definition of public officer, in paragraph (n), for "a judge, a magistrate" substitute "a judge, a reserve judge, a magistrate, a reserve magistrate". (2) For section 6(2)(i) of the Independent Broad-based Anti-corruption Commission Act 2011 substitute— "(i) a court; (j) an investigating panel; (k) a member of an investigating panel.". 163 Directions In section 57A(6) of the Independent Broad- based Anti-corruption Commission Act 2011, after paragraph (c) insert— "(ca) the Judicial Commission;". -- 143 of 169 -- Part 11—Amendment of other Acts Judicial Commission of Victoria Act 2016 No. 16 of 2016 136 Authorised by the Chief Parliamentary Counsel 164 Referral of complaint or notification for investigation by another person or body (1) After section 73(2)(d) of the Independent Broad-based Anti-corruption Commission Act 2011 insert— "(da) the Judicial Commission;". (2) In section 73(3)(b) of the Independent Broad-based Anti-corruption Commission Act 2011— (a) in subparagraph (ii), for "Inspectorate." substitute "Inspectorate; or"; (b) after subparagraph (ii) insert— "(iii) the Judicial Commission.". 165 New section 74A inserted After section 74 of the Independent Broad-based Anti-corruption Commission Act 2011 insert— "74A Referrals to the Judicial Commission If the IBAC considers it appropriate, the IBAC, at any time, may refer to the Judicial Commission any matter that the IBAC considers is relevant to the performance of the Judicial Commission's functions.". 166 Withdrawal of referred complaint or notification In section 79(1) of the Independent Broad-based Anti-corruption Commission Act 2011— (a) in paragraph (b), for Inspectorate." substitute "Inspectorate; or"; -- 144 of 169 -- Part 11—Amendment of other Acts Judicial Commission of Victoria Act 2016 No. 16 of 2016 137 Authorised by the Chief Parliamentary Counsel (b) after paragraph (b) insert— "(c) a referral to the Judicial Commission. Note See also section 18 of the Judicial Commission of Victoria Act 2016 for circumstances where the IBAC may require the Judicial Commission to adjourn the investigation.". Division 3—Amendment of Protected Disclosure Act 2012 167 Definitions In section 3 of the Protected Disclosure Act 2012— (a) insert the following definitions— "investigating panel has the same meaning as in Part IIIAA of the Constitution Act 1975; Judicial Commission has the same meaning as it has in Part IIIAA of the Constitution Act 1975; Judicial Commission officer has the same meaning as in the Judicial Commission of Victoria Act 2016;"; (b) after paragraph (d) of the definition of investigating entity insert— "(e) the Judicial Commission and if the Judicial Commission has appointed an investigating panel to investigate a complaint that is, or includes, a protected disclosure complaint, the investigating panel;". -- 145 of 169 -- Part 11—Amendment of other Acts Judicial Commission of Victoria Act 2016 No. 16 of 2016 138 Authorised by the Chief Parliamentary Counsel 168 Disclosure of improper conduct or detrimental action For section 9(3)(f) of the Protected Disclosure Act 2012 substitute— "(f) a court; (g) an investigating panel; (h) a member of an investigating panel.". 169 Disclosures that must be made to the IBAC In section 14 of the Protected Disclosure Act 2012, paragraphs (k) and (l) are repealed. 170 Disclosures that must be made to the IBAC or the Victorian Inspectorate In section 15 of the Protected Disclosure Act 2012— (a) in paragraph (c), for "officer." substitute "officer;"; (b) after paragraph (c) insert— "(d) a Judicial Commission officer other than a judicial member of the Board of the Judicial Commission.". 171 New section 16A inserted After section 16 of the Protected Disclosure Act 2012 insert— "16A Disclosures that must be made to the IBAC or the Judicial Commission A disclosure under this Part that relates to any of the following must be made to the IBAC or the Judicial Commission— (a) a judicial officer; (b) a member of VCAT who is not a judicial officer.". -- 146 of 169 -- Part 11—Amendment of other Acts Judicial Commission of Victoria Act 2016 No. 16 of 2016 139 Authorised by the Chief Parliamentary Counsel 172 Notification of disclosure to the IBAC by other entities In section 21(2) of the Protected Disclosure Act 2012, after "16" insert ", 16A". 173 Circumstances in which information may be disclosed (1) In section 54(2)(b) of the Protected Disclosure Act 2012, after "Ombudsman Act 1973" insert ", the Judicial Commission of Victoria Act 2016". (2) In section 54(3) of the Protected Disclosure Act 2012— (a) in paragraph (e) of the definition of relevant Act, for "2013;" substitute "2013; or"; (b) after paragraph (e) of the definition of relevant Act insert— "(f) the Judicial Commission of Victoria Act 2016; or (g) Part IIIAA of the Constitution Act 1975;"; (c) in paragraph (c) of the definition of witness summons, for "1958." substitute "1958; or"; (d) after paragraph (c) of the definition of witness summons insert— "(d) a requirement to produce a document or thing under section 69 of the Judicial Commission of Victoria Act 2016; or (e) a witness summons issued under section 70 of the Judicial Commission of Victoria Act 2016.". -- 147 of 169 -- Part 11—Amendment of other Acts Judicial Commission of Victoria Act 2016 No. 16 of 2016 140 Authorised by the Chief Parliamentary Counsel 174 Review of procedures In section 60(2) of the Protected Disclosure Act 2012, after "Victorian Inspectorate" insert ", the Judicial Commission". 175 Review of procedures established by the IBAC and the Ombudsman (1) In the heading to section 62 of the Protected Disclosure Act 2012, after "IBAC" insert ", the Judicial Commission". (2) In section 62(1) and (2) of the Protected Disclosure Act 2012, after "IBAC" (where first occurring) insert ", the Judicial Commission". 176 Offence to disclose certain advice In section 74(6) of the Protected Disclosure Act 2012— (a) after paragraph (c) of the definition of relevant Act insert— "(ca) the Judicial Commission of Victoria Act 2016; or (cb) Part IIIAA of the Constitution Act 1975; or"; (b) after paragraph (b) of the definition of witness summons insert— "(ba) a requirement to produce a document or thing under section 69 of the Judicial Commission of Victoria Act 2016; or (bb) a witness summons issued under section 70 of the Judicial Commission of Victoria Act 2016; or". -- 148 of 169 -- Part 11—Amendment of other Acts Judicial Commission of Victoria Act 2016 No. 16 of 2016 141 Authorised by the Chief Parliamentary Counsel Division 4—Amendment of Victorian Inspectorate Act 2011 177 Definitions In section 3(1) of the Victorian Inspectorate Act 2011— (a) after paragraph (c) of the definition of coercive power insert— "(d) in relation to the Judicial Commission, the power of the Judicial Commission to require the officer concerned to undergo a medical examination under section 29 of the Judicial Commission of Victoria Act 2016; (e) in relation to an investigating panel— (i) the power of an investigating panel to require the officer concerned to undergo a medical examination under section 57 of the Judicial Commission of Victoria Act 2016; or (ii) the power of an investigating panel to require the production of any document or thing under section 69 of the Judicial Commission of Victoria Act 2016; or (iii) the power of an investigating panel to issue a witness summons under section 70 of the Judicial Commission of Victoria Act 2016; or (iv) the power of a member of an investigating panel to examine a person under oath or affirmation under section 78 of the Judicial -- 149 of 169 -- Part 11—Amendment of other Acts Judicial Commission of Victoria Act 2016 No. 16 of 2016 142 Authorised by the Chief Parliamentary Counsel Commission of Victoria Act 2016; or (v) the power to apply for a search warrant under section 84 of the Judicial Commission of Victoria Act 2016;"; (b) insert the following definitions— "investigating panel has the same meaning as in Part IIIAA of the Constitution Act 1975; Judicial Commission has the same meaning as in Part IIIAA of the Constitution Act 1975;". 178 Objects of Act In section 5 of the Victorian Inspectorate Act 2011— (a) in paragraph (f), for "and Examiners." substitute "and Examiners; and"; (b) after paragraph (f) insert— "(g) monitor the use of coercive powers under the Judicial Commission of Victoria Act 2016.". 179 Functions of the Victorian Inspectorate After section 11(4) of the Victorian Inspectorate Act 2011 insert— "(5) Without limiting the generality of subsection (1), the Victorian Inspectorate has the function in respect of the Judicial Commission to monitor the use of coercive powers under the Judicial Commission of Victoria Act 2016.". -- 150 of 169 -- Part 11—Amendment of other Acts Judicial Commission of Victoria Act 2016 No. 16 of 2016 143 Authorised by the Chief Parliamentary Counsel 180 New section 85A inserted After section 85 of the Victorian Inspectorate Act 2011 insert— "85A Recommendation to the Judicial Commission (1) The Victorian Inspectorate may at any time make recommendations to the Judicial Commission for the purposes of the Judicial Commission making guidelines under section 134 of the Judicial Commission of Victoria Act 2016 in relation to any of the following— (a) the use of any coercive powers under that Act; (b) the determination by an investigating panel regarding whether a hearing or part of a hearing should be open to the public under section 62(3) of that Act. (2) The Victorian Inspectorate may request the Judicial Commission to give a report to the Victorian Inspectorate stating— (a) whether or not the Judicial Commission has implemented the recommendations of the Victorian Inspectorate; and (b) if the Judicial Commission has not implemented the recommendations, the reason for not implementing the recommendations.". 181 Recommendations must not include information likely to identify person who makes an assessable disclosure In section 86(1) of the Victorian Inspectorate Act 2011, for "or 85" substitute ", 85 or 85A". -- 151 of 169 -- Part 11—Amendment of other Acts Judicial Commission of Victoria Act 2016 No. 16 of 2016 144 Authorised by the Chief Parliamentary Counsel 182 Special reports After section 87(6) of the Victorian Inspectorate Act 2011 insert— "(6A) If the Victorian Inspectorate is aware of an investigation under the Judicial Commission of Victoria Act 2016 in relation to a matter or person to be included in a report under this section the Victorian Inspectorate must not include in the report any information which would prejudice the investigation under that Act.". 183 Outcome of investigation After section 89(4) of the Victorian Inspectorate Act 2011 insert— "(5) After considering information given to the Victorian Inspectorate regarding the use of coercive powers and any other related information under the Judicial Commission of Victoria Act 2016, the Victorian Inspectorate may— (a) make a recommendation to the Judicial Commission in accordance with section 85A; or (b) transmit a report under section 87; or (c) do both actions referred to in paragraphs (a) and (b); or (d) determine to make no findings or take no action.". -- 152 of 169 -- Part 11—Amendment of other Acts Judicial Commission of Victoria Act 2016 No. 16 of 2016 145 Authorised by the Chief Parliamentary Counsel 184 Matters to be included in annual report (1) After section 91(1)(o) of the Victorian Inspectorate Act 2011 insert— "(oa) details of the extent to which recommendations by the Victorian Inspectorate have been implemented by the Judicial Commission;". (2) After section 91(9) of the Victorian Inspectorate Act 2011 insert— "(9A) If the Victorian Inspectorate is aware of an investigation that is being or has been conducted under the Judicial Commission of Victoria Act 2016 in relation to a matter or person to be included in its annual report, the Victorian Inspectorate must not include in the annual report any information which would prejudice the investigation.". 185 Exemption from Freedom of Information Act 1982 In section 102(2) of the Victorian Inspectorate Act 2011, in the definition of relevant person or body— (a) in paragraph (m), for "any Examiner." substitute "any Examiner;"; (b) after paragraph (m) insert— "(n) the Judicial Commission.". Division 5—Amendment of other Acts 186 Children, Youth and Families Act 2005—Definitions In section 3(1) of the Children, Youth and Families Act 2005, the definition of Chief Magistrate is repealed. -- 153 of 169 -- Part 11—Amendment of other Acts Judicial Commission of Victoria Act 2016 No. 16 of 2016 146 Authorised by the Chief Parliamentary Counsel 187 Children, Youth and Families Act 2005— New section 509A inserted After section 509 of the Children, Youth and Families Act 2005 insert— "509A Administrative responsibility of President (1) The President is responsible for ensuring the effective, orderly and expeditious discharge of the business of the Court. (2) The President has the power to do all things necessary or convenient to be done to perform the President's responsibilities under subsection (1). (3) Nothing in this section limits the responsibilities, functions or powers of the President under this or any other Act.". 188 Children, Youth and Families Act 2005—Repeal of sections 542G to 542I Sections 542G, 542H and 542I of the Children, Youth and Families Act 2005 are repealed. 189 Coroners Act 2008—New section 95A inserted After section 95 of the Coroners Act 2008 insert— "95A Administrative responsibility of State Coroner (1) The State Coroner is responsible for ensuring the effective, orderly and expeditious discharge of the business of the Court. (2) The State Coroner has the power to do all things necessary or convenient to be done to perform the State Coroner's responsibilities under subsection (1). -- 154 of 169 -- Part 11—Amendment of other Acts Judicial Commission of Victoria Act 2016 No. 16 of 2016 147 Authorised by the Chief Parliamentary Counsel (3) Nothing in this section limits the responsibilities, functions or powers of the State Coroner under this or any other Act.". 190 Coroners Act 2008—Repeal of sections 102G to 102I Sections 102G, 102H and 102I of the Coroners Act 2008 are repealed. 191 County Court Act 1958—New section 8E After section 8D of the County Court Act 1958 insert— "8E Administrative responsibility of Chief Judge (1) The Chief Judge is responsible for ensuring the effective, orderly and expeditious discharge of the business of the Court. (2) The Chief Judge has the power to do all things necessary or convenient to be done to perform the Chief Judge's responsibilities under subsection (1). (3) Nothing in this section limits the responsibilities, functions or powers of the Chief Judge under this Act or any other Act.". 192 County Court Act 1958—Repeal of section 12A(2) Section 12A(2) of the County Court Act 1958 is repealed. 193 County Court Act 1958—Provision for pensions to County Court judges and their partners After section 14(22) of the County Court Act 1958 insert— "(23) For the purposes of this section, a reference to the resignation or retirement of a judge includes a reference to the removal of a judge from office by the Governor in -- 155 of 169 -- Part 11—Amendment of other Acts Judicial Commission of Victoria Act 2016 No. 16 of 2016 148 Authorised by the Chief Parliamentary Counsel Council under section 87AAB of the Constitution Act 1975 on the ground of proved incapacity if both Houses of the Parliament pray for the removal solely on the ground of proved incapacity. (24) A removal referred to in subsection (23) is taken to be a resignation or retirement due to the judge having become afflicted with some permanent incapacity disabling the judge from the due execution of the judge's office.". 194 County Court Act 1958—Pension entitlements of associate judges, their partners and children After section 17B(13) of the County Court Act 1958 insert— "(14) For the purposes of this section, a reference to the resignation or retirement of an associate judge includes a reference to the removal of an associate judge from office by the Governor in Council under section 87AAB of the Constitution Act 1975 on the ground of proved incapacity if both Houses of the Parliament pray for the removal solely on the ground of proved incapacity. (15) A removal referred to in subsection (14) is taken to be a resignation or retirement due to the associate judge having become afflicted with some permanent incapacity disabling the associate judge from the due execution of the associate judge's office.". 195 County Court Act 1958—Repeal of sections 17R to 17T Sections 17R, 17S and 17T of the County Court Act 1958 are repealed. -- 156 of 169 -- Part 11—Amendment of other Acts Judicial Commission of Victoria Act 2016 No. 16 of 2016 149 Authorised by the Chief Parliamentary Counsel 196 County Court Act 1958—Council of Judges At the foot of section 87 of the County Court Act 1958 insert— "Note See Divisions 1 and 2 of Part 6 of the Judicial Commission of Victoria Act 2016 which specifies functions for the Council of Judges.". 197 Magistrates' Court Act 1989—Repeal of section 9B(2) Section 9B(2) of the Magistrates' Court Act 1989 is repealed. 198 Magistrates' Court Act 1989—New section 12A inserted After section 12 of the Magistrates' Court Act 1989 insert— "12A Administrative responsibility of Chief Magistrate (1) The Chief Magistrate is responsible for ensuring the effective, orderly and expeditious discharge of the business of the Court. (2) The Chief Magistrate has the power to do all things necessary or convenient to be done to perform the Chief Magistrate's responsibilities under subsection (1). (3) Nothing in this section limits the responsibilities, functions or powers of the Chief Magistrate under this or any other Act.". -- 157 of 169 -- Part 11—Amendment of other Acts Judicial Commission of Victoria Act 2016 No. 16 of 2016 150 Authorised by the Chief Parliamentary Counsel 199 Magistrates' Court Act 1989—Council of magistrates At the foot of section 15 of the Magistrates' Court Act 1989 insert— "Note See Divisions 1 and 2 of Part 6 of the Judicial Commission of Victoria Act 2016 which specifies functions for the Council of magistrates.". 200 Magistrates' Court Act 1989—Repeal of sections 16F to 16H Sections 16F, 16G and 16H of the Magistrates' Court Act 1989 are repealed. 201 Ombudsman Act 1973—Definitions Insert the following definition in section 2(1) of the Ombudsman Act 1973— "Judicial Commission has the same meaning as in Part IIIAA of the Constitution Act 1975;". 202 Ombudsman Act 1973—Disclosure of information by the Ombudsman After section 16L(2)(h) of the Ombudsman Act 1973 insert— "(ha) the Judicial Commission;". 203 Ombudsman Act 1973—Amendment of Schedules 2 and 3 (1) For item 7 of Schedule 2 to the Ombudsman Act 1973 substitute— "7 A Victorian court or VCAT and any of the following— (a) judicial officers and non-judicial members of VCAT within the meaning of the Judicial Commission of Victoria Act 2016; -- 158 of 169 -- Part 11—Amendment of other Acts Judicial Commission of Victoria Act 2016 No. 16 of 2016 151 Authorised by the Chief Parliamentary Counsel (b) any judicial employee employed under Division 3 of Part 6 of the Public Administration Act 2004; (c) any other member of the staff of a registry or office of a court, to the extent that their functions relate to a judicial or quasi-judicial function of the court 7A The Judicial Commission or an investigating panel under the Constitution Act 1975". (2) After item 10 of Schedule 3 to the Ombudsman Act 1973 insert— "10AA The Judicial Commission". 204 Parliamentary Committees Act 2003—Definitions Insert the following definition in section 3 of the Parliamentary Committees Act 2003— "Judicial Commission has the same meaning as in Part IIIAA of the Constitution Act 1975;". 205 Parliamentary Committees Act 2003— Accountability and Oversight Committee (1) In section 6A(1)(f), (g) and (h) of the Parliamentary Committees Act 2003, after "Ombudsman officers" insert "or the Judicial Commission". (2) In section 6A(1)(i) of the Parliamentary Committees Act 2003, for "1973." substitute "1973; and". (3) After section 6A(1)(i) of the Parliamentary Committees Act 2003 insert— "(j) if so required or permitted under this Act, to inquire into, consider and report to Parliament on the operation of the Judicial Commission of Victoria Act 2016.". -- 159 of 169 -- Part 11—Amendment of other Acts Judicial Commission of Victoria Act 2016 No. 16 of 2016 152 Authorised by the Chief Parliamentary Counsel (4) In section 6A(2)(f)(iii) of the Parliamentary Committees Act 2003, for "relevant Act." substitute "relevant Act; or". (5) After section 6A(2)(f) of the Parliamentary Committees Act 2003 insert— "(g) investigate the conduct or capacity of a judicial officer or a non-judicial member of VCAT; or (h) examine the merits or basis of a complaint or referral which is being or has been considered under the Judicial Commission of Victoria Act 2016; or (i) reconsider the findings, recommendations, determinations or other decisions made or actions taken by the Judicial Commission or an investigating panel under the Judicial Commission of Victoria Act 2016 in relation to a complaint, referral or investigation under that Act.". (6) After section 6A(2) of the Parliamentary Committees Act 2003 insert— "(3) In this section— complaint has the same meaning as in the Judicial Commission of Victoria Act 2016; investigating panel has the same meaning as in Part IIIAA of the Constitution Act 1975; judicial officer has the same meaning as in Part IIIAA of the Constitution Act 1975; non-judicial member of VCAT has the same meaning as in the Judicial Commission of Victoria Act 2016; -- 160 of 169 -- Part 11—Amendment of other Acts Judicial Commission of Victoria Act 2016 No. 16 of 2016 153 Authorised by the Chief Parliamentary Counsel referral has the same meaning as in the Judicial Commission of Victoria Act 2016.". 206 Public Administration Act 2004—Definition After paragraph (ca) in the definition of exempt body in section 4(1) of the Public Administration Act 2004 insert— "(cb) the Judicial Commission of Victoria established under the Constitution Act 1975; or". 207 Supreme Court Act 1986—Arrangement of business of Court of Appeal In section 16 of the Supreme Court Act 1986, for "The President" substitute "Subject to section 28AAA, the President". 208 Supreme Court Act 1986—Council of Judges At the foot of section 28 of the Supreme Court Act 1986 insert— "Note See Divisions 1 and 2 of Part 6 of the Judicial Commission of Victoria Act 2016 which specifies functions for the Council of Judges.". 209 Supreme Court Act 1986—New Division 5A inserted After section 28 of the Supreme Court Act 1986 insert— "Division 5A—Powers of Chief Justice 28AAA Administrative responsibility of Chief Justice (1) The Chief Justice is responsible for ensuring the effective, orderly and expeditious discharge of the business of the Court. -- 161 of 169 -- Part 11—Amendment of other Acts Judicial Commission of Victoria Act 2016 No. 16 of 2016 154 Authorised by the Chief Parliamentary Counsel (2) The Chief Justice has the power to do all things necessary or convenient to be done to perform the Chief Justice's responsibilities under subsection (1). (3) Nothing in this section limits the responsibilities, functions or powers of the Chief Justice under this or any other Act.". 210 Supreme Court Act 1986—Pension entitlements of Associate Judges, their partners and children After section 104A(14) of the Supreme Court Act 1986 insert— "(15) For the purposes of this section, a reference to the resignation or retirement of an Associate Judge includes a reference to the removal of an Associate Judge from office by the Governor in Council under section 87AAB of the Constitution Act 1975 on the ground of proved incapacity if both Houses of the Parliament pray for the removal solely on the ground of proved incapacity. (16) A removal referred to in subsection (15) is taken to be a resignation or retirement due to the Associate Judge having become afflicted with some permanent incapacity disabling the Associate Judge from the due execution of the Associate Judge's office.". 211 Supreme Court Act 1986—Repeal of sections 113I to 113K Sections 113I, 113J and 113K of the Supreme Court Act 1986 are repealed. 212 Victorian Civil and Administrative Tribunal Act 1998 Sections 22, 23 and 24 of the Victorian Civil and Administrative Tribunal Act 1998 are repealed. -- 162 of 169 -- Part 11—Amendment of other Acts Judicial Commission of Victoria Act 2016 No. 16 of 2016 155 Authorised by the Chief Parliamentary Counsel Division 6—Repeal of amending Parts 213 Repeal of Part 10 and this Part Part 10 and this Part are repealed on 1 June 2018. Note The repeal of Parts 10 and 11 does not affect the continuing operation of the amendments made by those Parts (see section 15(1) of the Interpretation of Legislation Act 1984). -- 163 of 169 -- Part 12—Amendment of this Act Judicial Commission of Victoria Act 2016 No. 16 of 2016 156 Authorised by the Chief Parliamentary Counsel Part 12—Amendment of this Act Division 1—Amendments relating to dual commission holders 214 Definition In the definition of relevant council of judges in section 3— (a) in paragraph (b), after "County Court" insert "(other than the Chief Judge if the Chief Judge is a dual commission holder)"; (b) in paragraph (c), after "Chief Magistrate" insert "(unless the Chief Magistrate is a dual commission holder)"; (c) in paragraph (c), for "1989;" substitute "1989; or"; (d) after paragraph (c) insert— "(d) in relation to the Chief Judge who is a dual commission holder, the Council of Judges within the meaning of section 28 of the Supreme Court Act 1986; or (e) in relation to the Chief Magistrate who is a dual commission holder, the Council of the Judges within the meaning of section 87 of the County Court Act 1958;". -- 164 of 169 -- Part 12—Amendment of this Act Judicial Commission of Victoria Act 2016 No. 16 of 2016 157 Authorised by the Chief Parliamentary Counsel 215 Effect of standing down of judicial officer under section 98(2)(b) For section 100(1) substitute— "(1) The standing down of an officer concerned under section 98(2)(b) must— (a) in the case of an officer concerned other than a head of jurisdiction who is a dual commission holder, relate to all of the functions of the officer, including those functions exercised as a result of holding the office; or (b) in the case of the Chief Judge who is a dual commission holder, relate to all of the functions of the officer, including those functions exercised as a result of holding the offices of Chief Judge and Judge of the Supreme Court; or (c) in the case of the Chief Magistrate who is a dual commission holder, relate to all of the functions of the officer, including those functions exercised as a result of holding the offices of Chief Magistrate and judge of the County Court.". 216 Meeting of relevant council of judges to make determination In section 105(3)— (a) in paragraph (b), after "Chief Judge" insert "who is not a dual commission holder"; (b) in paragraph (c), after "Chief Magistrate" insert "who is not a dual commission holder". -- 165 of 169 -- Part 12—Amendment of this Act Judicial Commission of Victoria Act 2016 No. 16 of 2016 158 Authorised by the Chief Parliamentary Counsel Division 2—Repeal of Part 12 217 Repeal of Part 12 This Part is repealed. -- 166 of 169 -- Schedule 1—Integrity bodies Judicial Commission of Victoria Act 2016 No. 16 of 2016 159 Authorised by the Chief Parliamentary Counsel Schedule 1—Integrity bodies Section 3 1 The Auditor-General appointed under section 94A of the Constitution Act 1975; 2 The Commissioner for Privacy and Data Protection appointed under the Privacy and Data Protection Act 2014; 3 The Health Services Commissioner appointed under section 5 of the Health Services (Conciliation and Review) Act 1987; 4 The IBAC; 5 The Ombudsman appointed under section 3 of the Ombudsman Act 1973; 6 The Victorian Inspectorate; 7 A person or body of another State, a Territory or the Commonwealth that has functions corresponding to any or all of the functions of a person or body referred to in item 1, 2, 3, 4, 5 or 6; 8 A person or body of another State, a Territory or the Commonwealth that has functions corresponding to any or all of the functions of the Judicial Commission; 9 The Australian Crime Commission or another Commonwealth body having functions corresponding to any or all of the functions of that Commission; 10 The Judicial Commission of New South Wales or another New South Wales body having functions corresponding to any or all of the functions of that Commission; 11 A prescribed person or body that has an integrity function. -- 167 of 169 -- Schedule 2—Savings and transitional provisions Judicial Commission of Victoria Act 2016 No. 16 of 2016 160 Authorised by the Chief Parliamentary Counsel Schedule 2—Savings and transitional provisions Section 147 1 Matters referred under the Constitution Act 1975 Any matter that was referred to an investigating committee under section 87AAD of the Constitution Act 1975 before the commencement of section 154 of this Act may continue to be investigated by that committee under Part IIIAA of the Constitution Act 1975 after the commencement of section 156 of this Act and Part IIIAA of the Constitution Act 1975 as in force before that commencement continues to apply in respect of that matter. 2 Application of Act to conduct occurring before commencement of section 5 or 6 This Act applies to a complaint or referral that is made on or after the commencement of section 5 or 6 of this Act irrespective of when the conduct that is the subject of the complaint or referral is alleged to have occurred. ═══════════════ -- 168 of 169 -- Endnotes Judicial Commission of Victoria Act 2016 No. 16 of 2016 161 Authorised by the Chief Parliamentary Counsel Endnotes 1 General information See www.legislation.vic.gov.au for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information. † Minister's second reading speech— Legislative Assembly: 10 December 2015 Legislative Council: 25 February 2016 The long title for the Bill for this Act was "A Bill for an Act to amend the Constitution Act 1975 to establish the Judicial Commission of Victoria under that Act, to provide for investigations into judicial officers and non- judicial members of VCAT, to make consequential and other amendments to other Acts and for other purposes." Constitution Act 1975: Special majorities: Legislative Assembly: 8 March 2016 Legislative Council: 14 April 2016 Absolute majorities: Legislative Assembly: 8 March 2016 Legislative Council: 14 April 2016 -- 169 of 169 --