16Dismissal of complaints and referrals by Judicial Commission

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

(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—

(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.