HOME INSULATION PROGRAM (COMMISSION OF INQUIRY) BILL 2011

i Home Insulation Program (Commission of Inquiry) Bill 2011 No. , 2011

Contents

Part 1--Preliminary

1 Short

title

...........................................................................................

2 Commencement

.................................................................................

3 Act

binds

Crown

................................................................................

4 Definitions

.........................................................................................

5 Ministerial

responsibility for this Act ................................................ 3

Part 2--Commission of Inquiry into the Home Insulation

Program

Division 1--Establishment and functions of the Commission

6 Establishment

Commission ........................................................... 3

7 Terms

reference

.............................................................................

Report to the Parliament .................................................................... 5

Division 2--Powers of the Commission

9 Hearings

.............................................................................................

10 Publication

.........................................................................................

11 Counsel

assisting

the Commission ..................................................... 7

Power to summon witnesses and take evidence ................................. 7

Exception to privilege for Cabinet documents ................................... 8

14 Self-incrimination

..............................................................................

Statement made by witness not admissible in evidence ..................... 9

Arrest of witness failing to appear ..................................................... 9

17 Search

warrants

..................................................................................

Powers of Commission in relation to documents and other

things ............................................................................................... 11

Part 3--Offences

Unauthorised presence at hearing or publication of evidence .......... 11

Failure of witnesses to attend or produce documents ...................... 11

Refusal to be sworn or give evidence .............................................. 12

Acts or omissions on different days to constitute separate

offences ............................................................................................ 12

23 False

misleading evidence ........................................................... 12

24 Destroying

documents

or other things ............................................. 13

Intimidation or dismissal of witnesses ............................................. 13

26 Preventing

witnesses

from attending ............................................... 14

Bribery of witness ............................................................................ 14

28 Fraud

witness

..............................................................................

29 Contempt

Commission ................................................................ 15

Home Insulation Program (Commission of Inquiry) Bill 2011 No. , 2011 ii

Part 4--Operation of the Commission

Death or incapacity of Commissioner .............................................. 15

31 Remuneration

and

allowances ......................................................... 16

32 Staff

the

Commission .................................................................. 16

Protection of the Commissioner and others ..................................... 16

Legal and financial assistance .......................................................... 17

Reimbursement of witness expenses ............................................... 17

Commission may communicate information ................................... 18

37 Regulations

......................................................................................

Section 2

2 Home Insulation Program (Commission of Inquiry) Bill 2011 No. , 2011

2 Commencement

This Act commences on the day after it receives the Royal Assent.

3 Act binds Crown

This Act binds the Crown.

4 Definitions

In this Act:

Agency has the meaning given by section 7 of the Public Service

Act 1999.

Agency Head has the meaning given by section 7 of the Public

Service Act 1999.

Commission means the Commission of Inquiry into the Home

Insulation Program established under section 6.

Commissioner means the Commissioner appointed under section

Home Insulation Program means the Home Insulation Program

and all its subprograms and related programs including the Home

Insulation Safety Program and the the Foil Insulation Safety

Program.

Judge means a Judge of a court created by the Parliament or of the

Supreme Court of a State or Territory.

legal practitioner means a barrister, a solicitor, a barrister and

solicitor, or a legal practitioner, of the High Court or of the

Supreme Court of a State or Territory.

offence against this Act includes an offence against Chapter 7 of

the Criminal Code that relates to this Act.

President means the President of the Senate.

Speaker means the Speaker of the House of Representatives.

Commission of Inquiry into the Home Insulation Program Part 2

Establishment and functions of the Commission Division 1

Section 5

Home Insulation Program (Commission of Inquiry) Bill 2011 No. , 2011 3

5 Ministerial responsibility for this Act

The Attorney-General is the Minister responsible for administering

this Act.

Part 2--Commission of Inquiry into the Home

Insulation Program

Division 1--Establishment and functions of the

Commission

6 Establishment of Commission

(1) A Commission is established by this subsection, to be known as the

Commission of Inquiry into the Home Insulation Program.

(2) The Commission is constituted by a Commissioner appointed for

this subsection by a resolution of each House of the Parliament.

(3) A person is not eligible for appointment as Commissioner unless

the person is or has been a Judge.

7 Terms of reference

Ministerial actions

(1) The Commission is to inquire and advise the Parliament on:

(a) what warnings and advice on the Home Insulation Program

were received by Ministers (whether directly or through

agencies) from any of the following:

(i)

industry;

(ii)

Commonwealth

agencies;

(iii) State and Territory agencies;

(iv)

unions;

(v) members of the public; and

(b) any decisions by a Minister, or Ministers, to reject such

warnings or advice.

Part 2 Commission of Inquiry into the Home Insulation Program

Division 1 Establishment and functions of the Commission

Section 7

4 Home Insulation Program (Commission of Inquiry) Bill 2011 No. , 2011

Actions by agencies

(2) The Commission is to inquire and advise the Parliament on:

(a) what the Home Insulation Program required of:

(i) Commonwealth officers and agencies; and

(ii) State and Territory governments and agencies; and

(iii)

contractors;

including informal requirements as well as those expressed in

protocols, guidelines, procedures, conditions and timetables;

and

(b) whether those requirements were adequate to ensure that:

(i) they would be complied with; and

(ii) appropriate standards of quality and safety would be

met; and

(ii) the Program would achieve value for money; and

agencies from any of the following:

(i)

industry;

(ii) State and Territory agencies;

(iii)

unions;

(iv) members of the public; and

(d) any decisions by agencies to:

(i) reject such warnings or advice; or

(ii) advise Ministers to reject such warnings or advice; and

(e) how the Program's requirements were applied in practice

and, in particular, what was the response of the

Commonwealth to such warnings or advice; and

(f) whether all relevant Commonwealth procurement and other

guidelines and procedures were complied with.

Commission of Inquiry into the Home Insulation Program Part 2

Establishment and functions of the Commission Division 1

Section 8

Home Insulation Program (Commission of Inquiry) Bill 2011 No. , 2011 5

Responsibility

(3) The Commission is to inquire and advise the Parliament on

whether and to what extent any decisions or omissions by

Ministers or agencies caused or contributed to the loss of lives, loss

of property, incidence of fraud and incidence of fire under the

Home Insulation Program.

8 Report to the Parliament

(1) The Commission must submit to the President and the Speaker a

report containing:

(a) its findings of fact; and

(b) any recommendations relevant to the inquiry that the

Commissioner thinks fit.

(2) The report must be submitted on or before 1 November 2011,

unless that date is extended by a resolution of each House of the

Parliament.

(3) The Commission must submit with its report a record of so much

of the evidence before the Commission as the Commissioner thinks

necessary to substantiate its findings of fact and its conclusions.

(4) If the Commission is of the opinion that, if any of its findings or

conclusions or any of the evidence given before the Commission

were to be laid before the Houses of the Parliament:

(a) a person who has been or may be charged with an offence

might not receive a fair trial for the offence; or

(b) the conduct of an investigation of a breach or possible breach

of the law, might be prejudiced; or

information in relation to the enforcement or administration

of the law might be disclosed or a person enabled to ascertain

the existence or identity of that source; or

(d) there might be prejudice to the safety or reputation of a

person;

the Commission may submit those findings or conclusions, or that

evidence, to the President and the Speaker in a separate report,

together with a statement of its opinion.

Part 2 Commission of Inquiry into the Home Insulation Program

Division 2 Powers of the Commission

Section 9

6 Home Insulation Program (Commission of Inquiry) Bill 2011 No. , 2011

(5) As soon as practicable after receiving the report and record of

evidence, the President and the Speaker must cause copies of the

report and record, other than a separate report submitted under

subsection (4), to be laid before the Senate and the House of

Representatives.

Division 2--Powers of the Commission

9 Hearings

(1) For the purposes of its inquiry the Commission may hold hearings

at places in Australia determined by the Commission.

(2) A hearing is to be public unless the Commissioner decides that the

circumstances require the hearing, or part of the hearing, to be held

in private.

(3) A hearing may be recorded or broadcast by media representatives

in a manner determined by the Commissioner, unless the

Commissioner decides that the circumstances require that the

hearing, or part of the hearing, should not be broadcast or recorded.

(4) A person who appears before the Commission, or who is or is

likely to be affected by evidence given before the Commission,

may be represented by a legal practitioner.

(5) If a hearing is to be conducted in private, the only persons who

may be present are persons authorised by the Commissioner and

legal practitioners representing them.

(6) Subject to this Act, a hearing may be conducted as the

Commissioner thinks fit.

(7) The Commission must make a record of a hearing.

10 Publication

(1) The following must not be published except in accordance with a

direction of the Commissioner:

(a) evidence given before the Commission;

Commission of Inquiry into the Home Insulation Program Part 2

Powers of the Commission Division 2

Section 11

Home Insulation Program (Commission of Inquiry) Bill 2011 No. , 2011 7

(b) the contents of a document, or a description of a thing,

produced to the Commission or seized pursuant to a warrant

issued under section 12;

evidence before the Commission to be identified;

(d) the fact that any person has given or may be about to give

evidence at a hearing.

(2) The Commissioner must not give a direction to publish such

material if to do so might prejudice the safety or reputation of a

person or prejudice the fair trial of a person who has been or might

be charged with an offence.

11 Counsel assisting the Commission

The Commission may appoint a legal practitioner to assist the

Commission as counsel, either generally or in relation to a

particular matter or matters.

12 Power to summon witnesses and take evidence

(1) The Commissioner may, by a written summons signed by the

Commissioner and served on a person, summon the person to

attend a hearing at a time and place specified in the summons:

(a) to give evidence; or

(b) to produce documents or things specified in the summons.

(2) At a hearing, the Commissioner may:

(a) require a witness either to take an oath or to make an

affirmation; and

(b) administer the oath or affirmation to the witness.

(3) At a hearing, the following persons may, so far as the

Commissioner thinks appropriate, examine or cross--examine any

witness on any matter that the Commissioner considers relevant:

(a) counsel assisting the Commissioner;

(b) a person summoned or otherwise authorised to appear before

the Commissioner;

Part 2 Commission of Inquiry into the Home Insulation Program

Division 2 Powers of the Commission

Section 13 Exception to privilege for Cabinet documents

8 Home Insulation Program (Commission of Inquiry) Bill 2011 No. , 2011

before the Commissioner.

(4) The Commissioner may require a witness to answer any question

that the Commissioner considers relevant.

13 Exception to privilege for Cabinet documents

(1) This section applies if a person who is required to produce a

document under paragraph 12(1)(b) claims that the document is

privileged from production on the ground that:

(a) it is, or relates to, a document that was brought into

existence for the dominant purpose of submission for

consideration by the Cabinet; or

(b) its disclosure would involve the dislosure of a deliberation or

decision of the Cabinet.

(2) If the Commissioner determines that the document, or a portion of

it, is relevant to the inquiry, then even if, apart from this section,

the document would be privileged from production on that ground,

the Commissioner may order that the document, or the relevant

portion, be:

(a) disclosed to the persons specified by the Commissioner; or

(b) entered into the record of the inquiry;

as appropriate to fulfil the purpose of the inquiry.

14 Self-incrimination

(1) A person is not excused from producing a document or other thing

under paragraph 12(1)(b) on the ground that the document or other

thing might tend to incriminate the person or expose the person to a

penalty.

(2) A person is not excused from answering a question under

subsection 12(4) on the ground that the answer to the question

might tend to incriminate the person or expose the person to a

penalty.

Commission of Inquiry into the Home Insulation Program Part 2

Powers of the Commission Division 2

Section 15

Home Insulation Program (Commission of Inquiry) Bill 2011 No. , 2011 9

15 Statement made by witness not admissible in evidence

The following are not admissible in evidence in any civil or

criminal proceedings, except in proceedings for an offence against

this Act:

(a) a statement or disclosure made, or a document or thing

produced, by a witness in the course of giving evidence

before the Commission;

(b) any information, document or thing obtained as a direct or

indirect consequence of the statement or disclosure or the

production of the document or thing.

16 Arrest of witness failing to appear

(1) If a person served with a summons to attend before the

Commission as a witness fails to attend in accordance with the

summons, the Commissioner may, on proof of the service of the

summons, issue a warrant to arrest the person.

(2) A warrant authorises the arrest of the witness, the bringing of the

witness before the Commission and the detention of the witness in

custody for that purpose until the witness is released by order of

the Commissioner.

(3) A warrant may be executed by any member of the Australian

Federal Police or of the police force of a State or Territory, and the

person executing the warrant has power to break and enter any

place, building or vessel in order execute it.

(4) The arrest of the witness under this section does not relieve the

witness from any liability incurred by reason of non--compliance

with the summons.

17 Search warrants

(1) The Commissioner may issue a search warrant if:

(a) the Commissioner has reasonable grounds for suspecting that

there may be relevant material, at that time or within the next

24 hours, upon any land or upon or in any premises, vessel,

aircraft or vehicle; and

Part 2 Commission of Inquiry into the Home Insulation Program

Division 2 Powers of the Commission

Section 17

10 Home Insulation Program (Commission of Inquiry) Bill 2011 No. , 2011

(b) the Commissioner believes on reasonable grounds that, if a

summons were issued for the production of the material, it

might be concealed, lost, mutilated or destroyed.

(3) A search warrant authorises a member of the Australian Federal

Police or of the Police Force of a State or Territory, in accordance

with its terms:

(a) to enter upon the land or upon or into the premises, vessel,

aircraft or vehicle; and

(b) to search the land, premises, vessel, aircraft or vehicle for

relevant material; and

the premises, vessel, aircraft or vehicle and deliver things

seized to the Commission; and

(d) to make copies or extracts, including electronic copies or

extracts, of any relevant documents found.

(4) A search warrant must:

(a) state the purpose for which the warrant is issued; and

(b) state whether entry is authorised to be made at any time of

the day or night; and

seized; and

(d) specify a day, not later than one month after the date of issue

of the warrant, at the expiration of which the warrant ceases

to have effect.

(5) If, in the course of searching for relevant material in accordance

with a search warrant, the person executing the warrant finds any

other thing that the person believes on reasonable grounds to be

connected with that material and the person believes on reasonable

grounds that it is necessary to seize that thing in order to prevent its

concealment, loss, mutilation or destruction, the warrant authorises

the person to seize that thing.

(6) For this section, material or a document is relevant if it has

evidential value relevant to the Commission's inquiry.

Offences Part 3

Powers of the Commission

Section 18

Home Insulation Program (Commission of Inquiry) Bill 2011 No. , 2011 11

18 Powers of Commission in relation to documents and other things

(1) The Commission, or a person authorised in writing by the

Commissioner, may:

(a) inspect any documents or other things produced before, or

delivered to, the Commission; and

(b) retain the documents or other things for so long as is

reasonably necessary for the purposes of the Commission's

inquiry; and

Commission, make copies of matter relevant to the

Commission's inquiry.

(2) Where a document or other thing is no longer needed by the

Commission for its inquiry, the Commission is to return the

document or thing to the person who appears to be entitled to it, or

deal with it at that person's direction.

Part 3--Offences

19 Unauthorised presence at hearing or publication of evidence

A person commits an offence if:

(a) the person is present at a private hearing of the Commission

without being authorised under subsection 9 (5); or

(b) the person publishes material in contravention of subsection

10 (1).

Penalty: Imprisonment for 6 months.

20 Failure of witnesses to attend or produce documents

(1) A person commits an offence if, when served with a summons to

appear as a witness at a hearing before the Commission:

(a) the person fails to attend as required by the summons; or

(b) the person fails to attend from day to day unless excused, or

released from further attendance, by the Commissioner.

Penalty: Imprisonment for 6 months.

Part 3 Offences

Powers of the Commission

Section 21

12 Home Insulation Program (Commission of Inquiry) Bill 2011 No. , 2011

(2) It is a defence to a prosecution for an offence against subsection (1)

if the person has a reasonable excuse.

(3) A person appearing as a witness at a hearing before the

Commission commits an offence if the person refuses or fails to

produce a document or other thing that the person was required to

produce by a summons under this Act served on the person or that

the person was required to produce by the Commissioner.

Penalty: Imprisonment for 6 months.

(4) It is a defence to a prosecution for an offence against subsection (3)

if:

(a) the document or other thing was not relevant to the matter

into which the Commission was inquiring; or

(b) the person has a reasonable excuse.

21 Refusal to be sworn or give evidence

(1) A person appearing as a witness at a hearing before the

Commission commits an offence if, without reasonable excuse:

(a) the person refuses or fails to comply when required pursuant

to subsection 12(2) either to take an oath or make an

affirmation; or

(b) the person refuses or fails to answer a question that the

person is required to answer by the Commissioner.

Penalty: Imprisonment for 6 months.

22 Acts or omissions on different days to constitute separate offences

If a person commits an offence under section 21, and the person

does or omits to do the same thing at a hearing of the Commission

held on some other day, each such act or omission constitutes a

separate offence.

23 False or misleading evidence

(1) A person commits an offence if, at a hearing before the

Commission, the person gives evidence that is to the knowledge of

Offences Part 3

Powers of the Commission

Section 24

Home Insulation Program (Commission of Inquiry) Bill 2011 No. , 2011 13

the person false or misleading with respect to any matter that is

material to the inquiry being made by the Commission.

Penalty: Imprisonment for 5 years.

(2) A court of summary jurisdiction may hear and determine

proceedings in respect of such an offence if the court is satisfied

that it is proper to do so and the defendant and prosecutor consent.

Penalty: Imprisonment for 12 months.

24 Destroying documents or other things

(1) A person commits an offence if, knowing or having reasonable

grounds to believe that a document or other thing is or may be

required in evidence before the Commission, the person wilfully:

(a) conceals, mutilates or destroys the document or thing; or

(b) renders the document or thing incapable of identification; or

indecipherable.

Penalty: Imprisonment for 2 years.

(2) A court of summary jurisdiction may hear and determine

proceedings in respect of such an offence if the court is satisfied

that it is proper to do so and the defendant and the prosecutor

consent.

Penalty: Imprisonment for 12 months.

25 Intimidation or dismissal of witnesses

(1) A person commits an offence if the person uses, causes, inflicts, or

procures any violence, punishment, damage, loss or disadvantage

to a person because the person appeared as a witness before the

Commission or because of any evidence given by the person before

the Commission.

Penalty: Imprisonment for 5 years.

Part 3 Offences

Powers of the Commission

Section 26

14 Home Insulation Program (Commission of Inquiry) Bill 2011 No. , 2011

(2) An employer commits an offence if the employer dismisses an

employee from employment or prejudices an employee in

employment because the employee:

(a) appeared as a witness before the Commission; or

(b) gave evidence before the Commission; or

requirement under section 12.

Penalty: Imprisonment for 5 years.

(3) Subsection (2) does not apply if the employee was dismissed or

prejudiced in his or her employment for some reason other than the

reasons listed in that subsection.

26 Preventing witnesses from attending

A person commits an offence if the person wilfully prevents or

wilfully endeavours to prevent a person who has been summoned

to attend as a witness before the Commission from attending or

from producing anything in evidence in accordance with the

summons.

Penalty: Imprisonment for 12 months.

27 Bribery of witness

A person commits an offence if:

(a) the person gives, confers, or procures, or promises or offers

to give or confer, or to procure or attempt to procure, any

property or benefit of any kind to, upon, or for, any person,

upon any agreement or understanding that any person called

or to be called as a witness before the Commission will give

false testimony or withhold true testimony; or

(b) the person attempts by any means to induce a person called

or to be called as a witness before the Commission to give

false testimony or to withhold true testimony; or

receive or obtain any property or benefit of any kind, whether

for the person or for any other person, upon any agreement or

Operation of the Commission Part 4

Section 28

Home Insulation Program (Commission of Inquiry) Bill 2011 No. , 2011 15

understanding that any person will as a witness before the

Commission give false testimony or withhold true testimony.

Penalty: Imprisonment for 5 years.

28 Fraud on witness

A person commits an offence if the person practises any fraud or

deceit, or knowingly makes or exhibits any false statement,

representation, token, or writing, to any person called or to be

called as a witness before the Commission with intent to affect the

testimony of that person as a witness

Penalty: Imprisonment for 2 years.

29 Contempt of Commission

A person commits an offence if:

(a) the person wilfully disturbs or disrupts a hearing of the

Commission; or

(b) the person makes any statement that is false and defamatory

of the Commission; or

Penalty: Imprisonment for 12 months.

Part 4--Operation of the Commission

30 Death or incapacity of Commissioner

If the Commissioner dies, becomes physically or mentally

incapable of performing his or her functions or, by notice in

writing to the President and the Speaker, resigns his or her

appointment, the position of Commissioner becomes vacant and

the Senate and the House of Representatives are to appoint a new

Commissioner in accordance with subsection 6(2).

Part 4 Operation of the Commission

Section 31

16 Home Insulation Program (Commission of Inquiry) Bill 2011 No. , 2011

31 Remuneration and allowances

(1) The Commissioner is

to be paid the remuneration and allowances applicable to an acting Justice of the

Federal Court.

(2) If a Judge is appointed as the Commissioner, that person is not,

while receiving salary or annual allowance as a Judge, entitled to

remuneration under this Act.

(3) The person appointed as Commissioner ceases to hold office in that

capacity 7 days after submitting the report of the Commission to

the President and the Speaker.

32 Staff of the Commission

(1) Subject to subsection (2), the staff of the Commission are to be

persons made available to the Commission by the President and the

Speaker.

(2) The President and the Speaker may arrange with an Agency Head

for the services of officers or employees in that Agency to be made

available to the Commission.

(3) While a person is performing services for the Commission

pursuant to this section, that person must perform his or her

functions and duties in accordance with the directions of the

Commissioner.

33 Protection of the Commissioner and others

(1) The Commissioner has, in the performance of his or her functions

and the exercise of his or her powers, the same protection and

immunity as a Justice of the High Court.

(2) A legal practitioner assisting the Commission or representing a

person at a hearing before the Commission has the same protection

and immunity as a barrister has in appearing for a party in

proceedings in the High Court.

Operation of the Commission Part 4

Section 34

Home Insulation Program (Commission of Inquiry) Bill 2011 No. , 2011 17

(3) Subject to this Act, a person summoned to attend or appearing

before the Commission as a witness has the same protection as a

witness in proceedings in the High Court.

34 Legal and financial assistance

(1) A person who is appearing or is about to appear, or a person who is

entitled to appear, before the Commission may apply to the

Minister for assistance under this section.

(2) The Minister must obtain the advice of the President and the

Speaker in relation to an application.

(3) The President and the Speaker may, if they are satisfied that:

(a) it would involve substantial hardship to the person to refuse

the application; or

(b) the circumstances of the case are of such a nature that the

application should be granted;

request the Minister to authorise the provision by the

Commonwealth to that person such legal or financial assistance in

respect of that person's appearance as the President and the

Speaker determine.

(4) Any request by the President and the Speaker under this section is

to be either subject to conditions or unconditional.

(5) The Minister must comply with a request under subsections (3) and

(4).

35 Reimbursement of witness expenses

(1) A witness who appears before the Commission in answer to a

summons may be paid expenses in accordance with the scale that

applies to witnesses appearing before the High Court.

(2) The Commission may direct that a witness who appears before a

Commission without a summons may be paid expenses in

accordance with that scale.

(3) In applying that scale to a witness, the Commissioner has the

powers and functions of the taxing officer.

Part 4 Operation of the Commission

Section 36

18 Home Insulation Program (Commission of Inquiry) Bill 2011 No. , 2011

36 Commission may communicate information

Where, in the course of its inquiry, the Commission obtains

information that relates, or may relate, to the commission of an

offence, or evidence of the commission of an offence against a law

of the Commonwealth, of a State or of a Territory, the Commission

may, if in the opinion of the Commission it is appropriate to do so,

communicate the information or give the evidence to:

(a) the Attorney-General of the Commonwealth or of a State or

Territory; or

(b) the Australian Crime Commission; or

Police Force of a State or Territory; or

(d) the authority or person responsible for the administration or

enforcement of that law.

37 Regulations

The Governor-General may make regulations, not inconsistent with

this Act, prescribing matters:

(a) required or permitted by this Act to be prescribed; or

(b) necessary or convenient to be prescribed for carrying out or

giving effect to this Act.

Commonwealth of Australia Bills

HOME INSULATION PROGRAM (COMMISSION OF INQUIRY) BILL 2011