Judicial Conduct Commissioner and Judicial Conduct Panel (Deputy Commissioner and Disposal of Complaints) Amendment Act 2010

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Judicial Conduct Commissioner and Judicial Conduct Panel (Deputy Commissioner and Disposal of Complaints) Amendment Act 2010

Public Act2010 No 5
Date of assent22 March 2010
Commencementsee section 2

The Parliament of New Zealand enacts as follows:

1 Title
  • This Act is the Judicial Conduct Commissioner and Judicial Conduct Panel (Deputy Commissioner and Disposal of Complaints) Amendment Act 2010.

2 Commencement
  • This Act comes into force on the day after the date on which it receives the Royal assent.

3 Principal Act amended

Deputy Commissioner

4 Interpretation
  • (1) Section 5 is amended by inserting the following definition in its appropriate alphabetical order:

    Deputy Commissioner means a Deputy Judicial Conduct Commissioner appointed under section 8A.

    (2) Section 5 is amended by repealing the definition of Judicial Conduct Commissioner or Commissioner and substituting the following definition:

    Judicial Conduct Commissioner or Commissioner

    • (a) means a Judicial Conduct Commissioner appointed under section 7; and

    • (b) in sections 11 to 20 and 34, and clauses 7, 9, and 10 of Schedule 2, includes a Deputy Judicial Conduct Commissioner appointed under section 8A and carrying out his or her function under section 8B.

5 Heading above section 7 amended
  • The heading above section 7 is amended by adding and Deputy Judicial Conduct Commissioner.

6 Functions and powers
  • (1) The heading to section 8 is amended by adding of Commissioner.

    (2) Section 8 is amended by inserting the following subsections after subsection (1):

    • (1A) In carrying out his or her functions in relation to a complaint, the Commissioner may decide that he or she has a conflict of interest in relation to the complaint.

    • (1B) The functions of the Commissioner—

      • (a) must not be carried out by the Commissioner if they relate to a complaint in relation to which the Commissioner has decided that he or she has a conflict of interest; and

      • (b) are not carried out by the Commissioner in relation to any complaints in the situations specified in section 8B(1)(b)(i) and (ii).

    • (1C) The Commissioner must refer promptly to the Head of Bench a complaint—

      • (a) referred to the Commissioner by the Deputy Commissioner under section 8B(4); and

      • (b) in relation to which the Commissioner has decided that he or she has a conflict of interest.

7 New sections 8A and 8B inserted
  • The following sections are inserted after section 8:

    8A Deputy Judicial Conduct Commissioner
    • (1) An office called the Deputy Judicial Conduct Commissioner is established.

      (2) The Deputy Commissioner is appointed by the Governor-General on the recommendation of the House of Representatives.

      (3) Before a recommendation may be made under subsection (2), the Attorney-General must consult the Chief Justice about the proposed appointment and must advise the House of Representatives that the Chief Justice has been consulted.

      (4) A person is not to be regarded as being employed in the service of the Crown for the purposes of the State Sector Act 1988 or the Government Superannuation Fund Act 1956 solely because of his or her appointment as the Deputy Commissioner.

    8B Function and powers of Deputy Commissioner
    • (1) The function of the Deputy Commissioner is to carry out the functions of the Commissioner in relation to the following complaints (and no others):

      • (a) complaints (other than those that the Deputy Commissioner has referred to the Commissioner under subsection (4)) in relation to which the Commissioner has decided that he or she has a conflict of interest; and

      • (b) complaints of any kind in 1 or more of the following situations:

        • (i) during the absence from office of the Commissioner:

        • (ii) if the Commissioner is incapacitated in a way that affects the carrying out of his or her functions:

        • (iii) during a vacancy in the office of Commissioner.

      (2) In carrying out his or her function in relation to a complaint, the Deputy Commissioner may decide that he or she has a conflict of interest in relation to the complaint.

      (3) After deciding that he or she has a conflict of interest in relation to a complaint, the Deputy Commissioner must—

      • (a) not carry out his or her function in relation to the complaint; and

      • (b) promptly refer the complaint to the Head of Bench (unless the Deputy Commissioner refers the complaint to the Commissioner as soon as practicable under subsection (4)).

      (4) The Deputy Commissioner may refer a complaint to the Commissioner as soon as practicable (instead of referring it promptly to the Head of Bench under subsection (3)(b)) if the Deputy Commissioner—

      • (a) is carrying out the Commissioner's functions in relation to the complaint in 1 or more of the situations specified in subsection (1)(b)(i) to (iii); and

      • (b) decides that he or she has, in relation to the complaint, a conflict of interest; but

      • (c) believes on reasonable grounds, after consulting the complainant (if any), that the Commissioner is likely to be able to begin to deal with the complaint within a reasonable time.

      (5) The Deputy Commissioner has all the powers necessary for carrying out his or her function.

      (6) The fact that the Deputy Commissioner carries out a function or exercises a power is, in the absence of proof to the contrary, sufficient evidence of the Deputy Commissioner’s authority to do so.

8 Duty to act independently
  • Section 9 is amended by adding the following subsection as subsection (2):

    • (2) The Deputy Commissioner must act independently in carrying out his or her function.

9 Other provisions relating to Commissioner
  • (1) The heading to section 10 is amended by adding and Deputy Commissioner.

    (2) Section 10 is amended by adding and the Deputy Commissioner.

    (3) Part 1 of Schedule 2 is amended in the manner indicated in Schedule 1.

Disposal of complaints

10 Commissioner must conduct preliminary examination
  • (1) Section 15(1) is amended by repealing paragraphs (a) and (b) and substituting the following paragraphs:

    • (a) there are any grounds for exercising his or her power under section 15A to take no further action in respect of the complaint; or

    • (b) there are any grounds for dismissing the complaint under section 16; or

    • (c) the subject matter of the complaint, if substantiated, could warrant referral of the complaint to the Head of Bench under section 17; or

    • (d) the subject matter of the complaint, if substantiated, could warrant consideration of the removal of the Judge from office by way of a recommendation under section 18.

    (2) Section 15(5) is amended by inserting the following paragraph before paragraph (a):

    • (aa) exercise his or her power to take no further action in respect of the complaint (section 15A); or.

    (3) Schedule 1 is repealed and the Schedule 1 set out in Schedule 2 of this Act substituted.

11 New section 15A inserted
  • The following section is inserted after section 15:

    15A Commissioner’s power in certain circumstances to take no further action in respect of complaints
    • (1) The Commissioner may take no further action in respect of a complaint if satisfied that further consideration of the complaint would, in all the circumstances, be unjustified.

      (2) Reasons why further consideration of a complaint would, in all the circumstances, be unjustified, may be or include all or any of the following that apply to the complaint:

      • (a) that the complaint has been resolved to the complainant’s satisfaction following an explanation from the Judge who is the subject of the complaint:

      • (b) that the complaint is genuine and made in good faith, but is based on a misunderstanding:

      • (c) that the complaint is one in respect of which the Commissioner, having started the preliminary examination required by section 15, concludes that there is no reasonable prospect of there being available to him or her information that would enable him or her to form an opinion on the matters specified in section 15(1)(b), (c), and (d).

      (3) The fact that a complaint has been resolved to the complainant’s satisfaction because of an apology by the Judge who is the subject of the complaint is not, by itself, a reason why further consideration of a complaint would, in all the circumstances, be unjustified.

      (4) Subsection (2) does not limit subsection (1).

      (5) If the Commissioner exercises his or her power under this section to take no further action in respect of a complaint, he or she must give the complainant and the Judge who is the subject of the complaint written notification stating—

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

      • (b) the grounds on which he or she is satisfied that further consideration of the complaint would, in all the circumstances, be unjustified.

12 Commissioner must dismiss complaints that fail to meet required threshold
  • (1) Section 16(1) is amended by repealing paragraph (i) and substituting the following paragraph:

    • (i) he or she has considered or previously considered the subject matter of the complaint, and that subject matter could not, if substantiated, warrant either referral to the Head of Bench under section 17 or consideration of the removal of the Judge from office by way of a recommendation under section 18.

    (2) Section 16 is amended by inserting the following subsections after subsection (1):

    • (1A) The Commissioner has previously considered the subject matter of the complaint for the purposes of subsection (1)(i) if he or she has exercised his or her power under section 15A to take no further action in respect of the complaint.

    • (1B) Subsection (1A) does not limit subsection (1)(i).

13 Commissioner’s power to refer complaints to Head of Bench
  • Section 17(1) is amended by repealing paragraphs (a) and (b) and substituting the following paragraphs:

    • (a) exercises his or her power under section 15A to take no further action in respect of the complaint; or

    • (b) dismisses the complaint under section 16; or

    • (c) recommends under section 18 that a Judicial Conduct Panel be appointed.

Savings provision

14 New heading and new section 36 inserted
  • The following heading and section are inserted after section 35:

    Savings provision

    36 Amendments do not apply to certain complaints
    • Complaints made before the commencement of the Judicial Conduct Commissioner and Judicial Conduct Panel (Deputy Commissioner and Disposal of Complaints) Amendment Act 2010 must be dealt with as if that Act had not been enacted.

Related amendments to other Acts

15 Coroners Act 2006 amended
  • (1) This section amends the Coroners Act 2006.

    (2) Section 113(2) is amended by inserting or the Deputy Commissioner after the Commissioner in each place where it appears.

16 Official Information Act 1982 amended
  • (1) This section amends the Official Information Act 1982.

    (2) Paragraph (l)(i) of the definition of official information in section 2(1) is amended by inserting the Deputy Judicial Conduct Commissioner, after the Judicial Conduct Commissioner,.

    (3) Section 2(6)(f) is amended by inserting , the Deputy Judicial Conduct Commissioner, after the Judicial Conduct Commissioner in the first place where it appears.


Schedule 1
Amendments to Part 1 of Schedule 2

s 9(3)

Heading to Part 1 of Schedule 2

Add and Deputy Judicial Conduct Commissioner.

Heading to clause 1

Add and Deputy Commissioner.

Clause 1(1)

Insert or as the Deputy Judicial Conduct Commissioner after Commissioner.

Clause 1(2)

Add or as the Deputy Commissioner.

Clause 1(3)

Insert or the Deputy Commissioner after The Commissioner.

Clause 1(3)(a)

Insert or the Deputy Commissioner after the Commissioner.

Clause 1(4)

Insert or the Deputy Commissioner after The Commissioner.

Clause 2

Insert after subclause (1):

  • (1A) If a vacancy occurs in the office of Deputy Commissioner, the vacancy may be filled by the appointment of a successor by the Governor-General on the recommendation of the House of Representatives.

Clause 2(2)(a)

Insert specified in subclause (1) or (1A) after a vacancy.

Heading to clause 3

Add or Deputy Commissioner.

Clause 3

Insert or the Deputy Commissioner after the Commissioner.

Heading to clause 4

Insert and Deputy Commissioner after Commissioner.

Clause 4(1)

Repeal and substitute:

  • (1) This clause applies to the Commissioner, to the Deputy Commissioner, and to every person engaged or employed in connection with the work of the Commissioner or the Deputy Commissioner.

Clause 4(5)

Insert or the Deputy Commissioner after the Commissioner.

Clause 4(6)

Insert or the Deputy Commissioner after the Commissioner.

Clause 5(1)

Insert and the Deputy Commissioner after The Commissioner.

Clause 5(2)

Repeal and substitute:

  • (2) The Commissioner or the Deputy Commissioner is entitled to receive from the funds of the Commissioner’s office the actual and reasonable costs for travelling and other expenses that relate to the performance of his or her duties and responsibilities as the Commissioner or as the Deputy Commissioner.

Clause 6

Omit has and substitute and Deputy Commissioner have.

Omit is located and substitute and the Deputy Commissioner are located.


Schedule 2
New Schedule 1 substituted

s 10(3)

Schedule 1
Overview of process for Judicial Conduct Commissioner and Judicial Conduct Panel

s 3

.

Legislative history

16 March 2010Divided from Judicial Matters Bill (Bill 216–2) by committee of the whole House as Bill 216–3A
18 March 2010Third reading
22 March 2010Royal assent

This Act is administered by the Ministry of Justice.