AB v Judicial Commission of New South Wales (Conduct Division)

1. [1]

   THE COURT: One function of the Judicial Commission of New South Wales, established under the Judicial Officers Act 1986 (NSW), is to deal with complaints concerning “the ability or behaviour of a judicial officer.” [1] The Commission itself is required to conduct a preliminary examination of a complaint, which is undertaken, as far as practicable, in private. [2] Following that preliminary examination, a complaint may be (i) summarily dismissed, (ii) referred to the head of jurisdiction for the particular judicial officer, or (iii) referred to the Conduct Division. [3] Where a complaint is referred to the Conduct Division, the Commission appoints a panel of three persons to be members of the Conduct Division “for the purpose of exercising the functions of the Division in relation to [the complaint].” [4]

2. [2]

   Complaints were made with respect to a particular judicial officer in March and August 2017. Having conducted a preliminary examination, in December 2017 the Commission referred the complaints to the Conduct Division and a panel was appointed to deal with the complaints. Pursuant to s 24(1) of the Judicial Officers Act the Conduct Division “may hold hearings in connection with the complaint.” On 8 June 2018 the Conduct Division directed that a hearing be held and fixed the dates for the hearing. Further, pursuant to s 24(2), the Conduct Division may determine that a hearing “be held in public or in private”. On 8 October 2018 the Conduct Division determined that the hearing should be held in public. It delivered reasons for that decision.

3. [3]

   By summons filed in this Court on 22 October 2018 the judicial officer (known as “AB” for the purposes of this hearing) sought orders quashing the decision of the Conduct Division and ordering that the hearing before the Conduct Division take place in private. At the hearing, senior counsel for the applicant conceded that if the decision were quashed the matter would need to be remitted for further consideration by the Conduct Division.

Nature of this Court’s jurisdiction

1. [4]

   The nature and scope of this Court’s jurisdiction must be derived from two sources, namely the legal source of the jurisdiction and the nature of the function under review.

2. [5]

   As the High Court noted in Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd, [5] “[t]he jurisdiction of the Supreme Court of New South Wales to make an order in the nature of certiorari is an aspect of its jurisdiction as ‘the superior court of record’ in that State.” [6] Pursuant to s 69(1) of the Supreme Court Act 1970 (NSW) the jurisdiction is exercised by grant of judgment or order under the Supreme Court Act and the rules, rather than by way of prerogative writ.

3. [6]

   It is not possible for the legislature to limit that jurisdiction, recognised by ss 22 and 23 of the Supreme Court Act, [7] but there is no doubt that the Parliament can expand the jurisdiction. In dealing with the jurisdiction to grant relief based on “error of law that appears on the face of the record of the proceedings” the term “the face of the record” has been expanded to include “the reasons expressed by the court or tribunal for its ultimate determination.” [8]

4. [7]

   It was not in contention in the present proceedings that decisions of the Judicial Commission when dealing with complaints which had been referred to the Conduct Division fell within the scope of the supervisory jurisdiction of this Court.

5. [8]

   So far as the identity of the decision-maker is concerned, it was appropriate that the members of the panel not be individually joined as parties. [9] While the Conduct Division was named as the sole respondent on the summons, the parties agreed that the proper party was the Judicial Commission, being a statutory body having a corporate existence. [10] The Attorney General has been joined and has appeared to defend the decision of the Conduct Division.

6. [9]

   Apart from defending the decision on its merits, the Attorney has raised an issue as to whether a procedural decision of what is in effect a disciplinary tribunal may be the subject of orders in the nature of certiorari. In Hot Holdings Pty Ltd v Creasy, [11] Brennan CJ, Gaudron and Gummow JJ said: [12]

7. [10]

   However, as demonstrated by Ainsworth v Criminal Justice Commission [13] declaratory relief may be available with respect to decisions which do not have a specific legal effect. In Ainsworth declaratory relief was available to provide a remedy to a person whose reputation had been adversely affected by a flawed process and published report. In the present case, the applicant asserts that there may be adverse consequences, both with respect to personal interests and with respect to the functions exercised by a judicial officer in the administration of justice, if the proceedings are heard in public.

8. [11]

   Again, it is sufficient to accept for present purposes that the supervisory jurisdiction of the Court is properly engaged. It is not in doubt that, whatever the form of relief which might be provided by this Court, the Conduct Division would comply with it.

Grounds of review

1. [12]

   The applicant’s summons identified 11 grounds of review, each of which was considered individually in the submissions. However, they may conveniently be dealt with in three categories. First, grounds 1, 2, 3 and 5 identified a supposed misunderstanding as to the nature of a “hearing” provided for in s 24(2) of the Judicial Officers Act. Secondly, ground 4 related to the principle of “open justice”. Taken together, grounds 1-5 read as follows:

2. [13]

   As may be seen, ground 5 commenced with reference to grounds 1-4, and asserted that the misconstruction of s 24(2) involved jurisdictional error. It is, nevertheless, convenient to deal with ground 4 separately.

3. [14]

   Grounds 6-10 all involved the allegedly erroneous treatment of certain Guidelines for the Examination of Complaints formulated by the Judicial Commission pursuant to a power conferred by s 10 of the Judicial Officers Act. Ground 11 alleged jurisdictional error on the basis of the matters set out “in grounds 5-10”, although this appears to have been a reference to grounds 6-10. It is convenient to deal with grounds 6-11 together, which require reference to the Guidelines.

Nature of a “hearing”

1. [15]

   The first step to be taken by the Conduct Division in relation to a complaint referred to it is to “conduct an examination”, for which purpose it may initiate “such investigations into the subject-matter of the complaint as it thinks appropriate”: s 23(1) and (2). Both the examination and the investigations “shall, as far as practicable, take place in private”: s 23(3).

2. [16]

   It is clear from the structure of Pt 6 that Div 3 involves a sequential process, the examination being followed by a possible hearing as provided for by s 24:

3. [17]

   Although the written submissions for the applicant stated that the Conduct Division “plainly fell into error by wrongly construing s 24(2)” and in so doing “failed to consider the purpose of the text of s 24(2) in its proper context within the operation of the Judicial Officers Act”, [14] at least the second proposition was patently incorrect. The reasons for the decision made careful reference to various provisions of the Judicial Officers Act, the second reading speech for the 2006 Judicial Officers Amendment Bill, s 53 of the Constitution Act 1902 (NSW) and powers conferred by s 43(2) of the Interpretation Act 1987 (NSW) to amend or repeal any order made; it noted the possibility of a contrary intention referred to in s 5(2) of the Interpretation Act. None of this needs repetition. Rather, it is sufficient to focus on three paragraphs in the reasoning of the Conduct Division to which exception was taken:

4. [18]

   The complaints about this reasoning focused on two propositions. The first was that the Conduct Division failed to understand that “[w]hile one characteristic of a public hearing is the material conduct of the hearing itself, another equally important characteristic of a public hearing is a publicly available record of the proceedings.” [15] These aspects were said to be “equally important” because underlying each was a similar justification, namely the provision of an opportunity for public scrutiny of the process. The second error, consequent upon the first, was said to involve a failure to appreciate that a decision as to whether a hearing should be in private or in public need not only be made “prospectively”, but could be made after the event.

5. [19]

   These criticisms are without substance. It is undoubtedly true that both the presence of the public at a hearing and the availability of a transcript of the hearing are mechanisms which will allow for public scrutiny of the proceedings. However, because they may be seen to serve the same purpose does not mean that each is part of one mechanism, namely “a hearing”.

6. [20]

   Whatever may be said about the applicant’s proposition in general terms, it bears no relationship to the language of s 24. Making a transcript publicly available does not constitute holding a hearing within s 24(1). Nor, in making a transcript available, does one “give directions as to the persons who may be present”, in the language of s 24(5). Nor, in making a transcript available, does one permit representation of a party, or the examination and cross-examination of witnesses, as provided in s 24(6) and (7).

7. [21]

   So far as the temporal element is concerned, it would no doubt have been possible to spell out in more detail that which was stated concisely and entirely accurately in the three paragraphs set out above. There was, relevantly, a binary choice. If a hearing (or part thereof) were held in public, it would, at the very least, be difficult to undo the consequences. Whatever confidential information was revealed would then be in the public arena. As the courts know from practical experience, where things which ought not be said publicly are said in open court all that one can hope to do is to make a non-publication order, which may be ineffective. That is undoubtedly what the Conduct Division had in mind in saying that “an order amended or repealed after a hearing would be devoid of any practical effect.”

8. [22]

   It is also true that a direction that a hearing (or part thereof) be in private cannot be fully undone after the hearing has been completed. While a transcript of the hearing may be made available publicly, as the principles of appellate review demonstrate, reading a transcript of evidence is quite a different activity from listening to the evidence unfold at an oral hearing.

9. [23]

   In setting out the functions conferred by the Act, the Conduct Division dealt with the power to determine whether a hearing be held and, if held, be held in public or in private, separately from the power to control the publication of evidence or matters contained in documents lodged with the Division, pursuant to s 36(1) of the Judicial Officers Act. After concluding at [54] that the hearing should be held in public, the reasoning continued:

10. [24]

    That statement was not legally erroneous. Grounds 1 and 5 are without substance.

11. [25]

    Grounds 2 and 3 require reference to the reasoning in two specific cases which had been relied upon by the applicant at the hearing in the Conduct Division.

12. [26]

    The first case, National Companies and Securities Commission v Bankers Trust Australia Ltd, [16] was a decision dealing with powers of the NCSC to hold hearings in conducting investigations under a predecessor to the Corporations Act 2001 (Cth). The passage relied upon by the applicant was drawn from the judgment of Lockhart J and read as follows:

13. [27]

    With respect to this passage the Conduct Division stated:

14. [28]

    The applicant alleged error in this paragraph on the basis that Lockhart J “was speaking of an ex post facto order for the disclosure of material – not just evidence” and the Conduct Division wrongly assumed that his observations were “only in relation to non-publication orders and not to orders that a hearing be conducted in private.” [17]

15. [29]

    This complaint fails for four reasons. First, it is not clear that the Conduct Division misunderstood the passage relied on by the applicant. Secondly, even if the Conduct Division gave the passage a more limited reading than the applicant proposed, there is no basis for inferring that such a misreading affected its decision; it had referred to its power to amend or revoke an order. Thirdly, and more fundamentally, the passage relied upon bears no resemblance to a principle of law; it is self-evidently a description of practical considerations which may operate where the public has been excluded but the tribunal either provides that secrecy will operate for a limited period or later decides that secrecy is no longer necessary.

16. [30]

    Interestingly, Lockhart J also stated: [18]

17. [31]

    Fourthly, if contrary to the last position, Lockhart J was making a statement of legal principle, he was in dissent as to the issue in contention, namely the power of the Commission to restrict access to the transcript.

18. [32]

    The second case relied upon was Tucker v Minister for Immigration and Citizenship. [19] That case involved a challenge to a decision of the Administrative Appeals Tribunal (“the AAT”) affirming the decision of the Minister to cancel a visa. The Tribunal had regard to the best interests of the applicant’s children, for which purpose it referred to both a written report and oral evidence given by a Dr Asquith. The applicant complained that he did not have access to Dr Asquith’s evidence. Section 35(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) gave the Tribunal power to make a range of directions, including one restricting disclosure of evidence to a party to proceedings before the Tribunal. Such an order would obviously have an adverse impact on procedural fairness, if the evidence the subject of the order were adverse to the applicant. The passage in the judgment relied upon by the applicant read as follows:

19. [33]

    The Conduct Division noted that it had been referred to Tucker and that the Full Court of the Federal Court had accepted that the AAT had an implied power to revoke an earlier ex parte order. The Conduct Division further stated that in its view, Tucker “has limited relevance to the Conduct Division’s power under s 24(2) of the [Judicial Officers Act].” [20]

20. [34]

    The complaint is that the Conduct Division “provided no further reasons for its conclusion as to the relevance of the observation in Tucker that an order under s 35(2) [of the AAT Act] might involve both the making of an order under that provision and a subsequent revocation of that order.” [21]

21. [35]

    This complaint is without foundation. The Conduct Division did not conclude that if it made a constraining order at some point it had no power to undo the order; it was patently more concerned about the effect of failing to make such an order, which was the course it took over the objection of the applicant. Further, it is by no means clear what relevance a ruling of the Full Court of the Federal Court with respect to a provision of quite a different kind in the AAT Act could have for the construction of a provision in the Judicial Officers Act. Finally, it is helpful to focus upon the issue before the Conduct Division. That issue was whether, in accordance with the applicant’s submission, it should make an order that the hearing before it be held in private, that is, excluding members of the public. The gravamen of the applicant’s complaint appears to have been that the Conduct Division did not make such an order because it thought it would be unable to undo its effect if it later turned out to have been unnecessary. In fact, the only point which the Conduct Division sought to make was that it could not delay making such an order until some time in the course of or after the proceedings. No doubt the applicant would have immediately challenged its decision if it had proposed such a course. The effect would have been the same as refusing to make an order that the proceedings be heard in private.

Open justice

1. [36]

   Ground 4 alleged that the Conduct Division “incorrectly applied the principles of ‘open justice’ to an administrative rather than judicial context.” The applicant’s written submissions in relation to this ground concluded with the proposition that the Conduct Division “erred in giving too much weight to the open justice principle, which has no direct application to administrative proceedings of the kind before it.” [22]

2. [37]

   Each of these propositions is problematic. First, incorrect application of a legal principle does not necessarily involve jurisdictional error. As explained in the joint reasons of Kiefel CJ, Gageler and Keane JJ in Hossain v Minister for Immigration and Border Protection, [23] “[j]urisdiction, in the most generic sense in which it has come to be used in this field of discourse, refers to the scope of the authority that is conferred on a repository.” The joint reasons continued:

3. [38]

   Secondly, giving “too much weight” to a permissible consideration does not usually indicate jurisdictional error. The weight which may be given to a permissible (or even a mandatory) consideration is usually the central function of the decision-maker and is not a matter for the reviewing court to determine. [25]

4. [39]

   Thirdly, both the ground and the submissions appear to divide decision-making functions into two camps, namely judicial and administrative decisions. In some circumstances reliance on such a dichotomy is apt; in others it is not. It is clear that there is no bright line distinction between judicial and administrative processes; the appropriate classification may well depend upon the purpose for which the classification is undertaken. Further, there is no necessary dichotomy; other labels may properly be assigned to different processes. On one view, the functions of the Conduct Division would be better characterised as a form of disciplinary proceeding than as administrative decision-making. On another view, the function of the Conduct Division in dealing with a complaint about the ability or behaviour of a judicial officer is constitutionally unique.

5. [40]

   The applicant pointed to the reasons of Priestley JA in Bruce v Cole, [26] describing the Conduct Division “as an administrative (that is, executive) body”. However, Priestley JA also described the duty and function of the Conduct Division as “making findings of fact and … forming an opinion to be set out in a report to the Governor (that is, the executive government).” The report could result in parliamentary consideration of the removal of the judicial officer from his or her office.

6. [41]

   As more fully explained by Spigelman CJ in Bruce v Cole, [27] the role of the Conduct Division was to provide a further procedural restraint, reinforcing the principle of judicial independence, in a system for maintaining the integrity of the judiciary pursuant to which, “from the passage of the Act of Settlement 1700 (Eng), it has been accepted that judicial officers cannot be removed except by exceptional measures involving action by both the executive and the legislature.” [28]

7. [42]

   That unique function will inform the manner in which the Conduct Division will operate, and the manner in which a judicial officer who is subject to investigation, and counsel representing the judicial officer, should comport themselves before the Conduct Division. It should not be an unduly adversarial process.

8. [43]

   The passages in the reasons of the Conduct Division which formed the basis of this ground commenced with the following discussion:

9. [44]

   Although the first sentence of [27] was, unsurprisingly, not criticised by the applicant, the written submissions stated: [29]

10. [45]

    That assumed error finds no support in the passage set out above; it is contradicted by the following two paragraphs which read as follows:

11. [46]

    Although it is clear, for the reasons given in first considering this ground, that there was no jurisdictional error, three further points should be made. First, it is beyond doubt that the Conduct Division did not think it was a court. Secondly, it expressly accepted that the open justice principle did not apply in the same way before it as it did in relation to a court. Thirdly, it was correct to have regard to the open justice principle. In addition to the passage set out above, Gleeson CJ stated in Chaffey: [30]

Criteria set by Guidelines

1. [47]

   In considering the third tranche of grounds, it is necessary to explain, by way of background, the role played by Guidelines established by the Judicial Commission. Section 10 of the Judicial Officers Act provides that the Commission may “formulate guidelines to assist both it and the Conduct Division in the exercise of their functions”; the Guidelines “may include provisions with respect to … the criteria that the Conduct Division should consider when determining whether a hearing should be held in public or in private”. [31]

2. [48]

   The parties expressed different views in this Court as to whether any criteria for which the Guidelines made provision were to be treated as permissible considerations or as mandatory considerations. The ambiguity derived in part from the expression “should consider”, which could mean shall or must consider, indicating obligation, or could, in a weaker form, indicate advisability or likelihood of an outcome.

3. [49]

   There is a more fundamental reason for doubting the legal effect of the criteria contained in the Guidelines. As explained by Leeming JA in Ali v AAI Ltd, [32] the legal effect of guidelines will depend upon the authority conferred by the empowering statute. Section 10(1)(a) of the Judicial Officers Act empowers the Commission to formulate guidelines “to assist” both it and the Conduct Division. That is not the language of imposing legal obligations. Taken in combination, the use of the term “guidelines”, their purpose “to assist”, and the power to include criteria which “should” be considered, are inconsistent with any delegation of legislative function. It follows that the formulation of criteria, especially in the general language discussed below, creates no legal obligation on the Conduct Division. In short, the criteria do not constitute mandatory considerations which, if not addressed, will result in error of law.

4. [50]

   In any event, to the extent that the grounds alleged a failure to have regard to each particular criterion, those grounds were not made out.

5. [51]

   The relevant Guideline was in the following terms:

6. [52]

   Apart from the sixth criterion, the application of which was not challenged, the criteria will be addressed in dealing with the remaining grounds, which were as follows:

Criterion (a) – ground 6

1. [53]

   The applicant alleged that the Conduct Division failed to consider that the term “public interest” includes not just the public interest in conducting hearings in public, but also the public interest in maintaining confidence in the authority of the judiciary and judicial officers.

2. [54]

   The term “public interest” has no precise meaning. It is protean and will take its possible meanings from the context in which it is used. In fact, each of the six criteria set out in the Guideline involves an element of the public interest. Ground 6 suggests that there may be a conflict between the public interest in public hearings and the public interest in maintaining confidence in the authority of the judiciary and judicial officers; there is an available alternative view, namely that the latter may be promoted by the former, rather than being in conflict with it. However, none of this greatly matters because the Conduct Division expressly referred to the statutory purpose of the Judicial Officers Act being “to protect and promote public confidence in the judiciary and in the administration of justice … and the maintenance of standards in the judiciary”: at [14]. [33] Then, in specifically addressing the first criterion, it stated:

3. [55]

   The proposition that the Conduct Division failed to consider the first criterion is without substance.

Criteria (b) and (c) – grounds 7 and 8

1. [56]

   Ground 7 alleged that the Conduct Division failed to have regard to the fact that there was “an allegation of suspected mental impairment.” Ground 8 alleged that it erred in “reaching the conclusion that a non-publication order … was capable of preserving confidentiality in relation to the allegation of suspected mental impairment when such an order could only ever apply to ‘evidence’ and not to any other material in connection with the proceedings.”

2. [57]

   The premise of ground 7 is explicitly denied by ground 8: in other words, ground 8 acknowledges that the Conduct Division expressly acknowledged and considered an allegation of suspected mental impairment.

3. [58]

   In considering the first criterion the Conduct Division noted that the public interest in a public hearing may conflict with the right of the individual not to be harmed by the proceeding, referring to Mahoney JA in Chaffey. [34] The reasoning also noted that, while the allegations primarily related to the performance of judicial functions ‘which are not of the type that would inherently warrant consideration in private or require “confidential treatment”’, an exception arose concerning “an allegation of suspected mental impairment.” [35] The Conduct Division continued:

4. [59]

   On one view, the applicant’s complaint is not that the Conduct Division did not consider matters raised by criteria (b) and (c), but rather that it misapprehended the scope of its powers under s 36. In that respect the formulation of the power identified by ground 8 is fallacious. Section 36(1) empowers the Conduct Division to give directions “preventing or restricting the publication of evidence given before the Division or of matters contained in documents lodged with the Division.” (Emphasis added.)

5. [60]

   Grounds 7 and 8 are without substance.

Criterion (d) – ground 9

1. [61]

   The fourth criterion refers to a putative need “to protect a person who provides information to the Conduct Division as part of its investigation”. The criterion is imprecisely expressed; it is unclear whether a person who provides information is apt to include the person under investigation. The better view is probably that it relates to something akin to the need to protect informers from disclosure of their identities. It appears that that is how the Conduct Division read the criterion because it noted that there was “no suggestion that any potential witness or other person may be at risk of retaliation or other personal or professional harm as a result of the provision of information to the Conduct Division.” [36] Implicitly taking the alternative broader reading, ground 9 alleged failure to have regard for concerns raised by the applicant with respect to personal safety.

2. [62]

   Whichever be the correct construction, the real question is whether the Conduct Division had regard to the judicial officer’s expressed fears for personal safety if the hearing were to be held in public, making it more likely that photographs would be taken and published. As senior counsel for the Attorney noted, that factor was expressly identified in the reasons at [11] and expressly taken into account at [36] and [37] in considering the public interest. Thus the Conduct Division expressly noted the submission that the judicial officer “held fears for [the officer’s] safety if the hearing were in public” as “a public hearing would make it more likely that [the officer] may be photographed”, noting it was a factor which “must be taken into account in that balance.” [37] As senior counsel for the judicial officer accepted, there was no material before the Conduct Division to support the expressed fear. The matter was addressed, correctly, as a factor to be taken into account in determining where the balance of public interests lay. Ground 9 must be rejected.

Criterion (e) – ground 10

1. [63]

   The fifth criterion identified as a matter to be taken into account is whether public confidence in the authority of the judiciary would be undermined “by a public or private hearing”, thus impliedly accepting that it might be undermined by either course. The factor is undoubtedly an important one, but its operation will depend upon particular circumstances and it may well ultimately be a neutral consideration. Ground 10 was based upon the proposition that the Conduct Division dismissed the relevance of the criterion on the basis that it would apply in all cases that came before the Conduct Division.

2. [64]

   The written submissions did not raise any separate issue in respect to this ground, merely relying on submissions made with respect to other grounds. However, it is important to note that the reasons given with respect to criterion (e) were mischaracterised by the ground. The Conduct Division stated:

Conclusions

1. [65]

   None of the grounds of challenge raised by the applicant should be upheld. It follows that the summons seeking judicial review of the decision of the Conduct Division to hold hearings in public must be dismissed. The applicant must pay the Attorney’s costs of the proceedings in this Court.