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2010 - 2011 - 2012
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
JUDICIAL MISBEHAVIOUR AND INCAPACITY
(PARLIAMENTARY COMMISSIONS) BILL 2012
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be moved on behalf of the Government
(Circulated by authority of the Attorney-General,
the Honourable Nicola Roxon MP)
JUDICIAL MISBEHAVIOUR AND INCAPACITY (PARLIAMENTARY
COMMISSIONS) BILL 2012
OUTLINE
The purpose of these amendments is to address Recommendations 3, 5 and 6 of the Senate Legal
and Constitutional Affairs Legislation Committee inquiry into the Courts Legislation Amendment
(Judicial Complaints) Bill 2012 and the Judicial Misbehaviour and Incapacity (Parliamentary
Commissions) Bill 2012.
The amendments would:
· exclude serving State or Territory judges from being members of a Commission
(Amendments 1, 2, 3 and 6 to 12)
· clarify the status for archiving purposes of a separate sensitive report given by a Commission to
the parliamentary presiding officers in a manner consistent with other records of a Commission
(Amendments 4, 13 and 14), and
· clarify the application of subsection 16(6) of the Parliamentary Privileges Act 1987 to a
Commission so that evidence of proceedings of a Commission can be used in a prosecution of
offences under the Bill relating to a Commission's investigation (Amendment 5).
FINANCIAL IMPACT STATEMENT
These Government amendments have no financial impact.
NOTES ON AMENDMENTS
Amendment 1 inserts a definition of `Commonwealth or State judicial officer' into clause 7 of the
Bill. `Commonwealth or State judicial officer' will mean a Commonwealth judicial officer or a
judge or justice of a court of a State or Territory. The term will be used in a number of locations in
the Bill to reflect the exclusion of serving judicial officers of a court of a State or Territory from
being members of a Commission (see Amendments 3 and 12). `Commonwealth judicial officer' is
defined separately in clause 7 of the Bill, and is used distinctly from `Commonwealth or State
judicial officer'.
Amendment 2 removes the reference to serving judge of a State or Territory Supreme Court in
paragraph 13(3)(b). The effect of this amendment is to exclude serving judges of the Supreme
Court of a State or Territory from appointment as a member of a Commission under subclause 13(3)
of the Bill. Subclause 13(3) as amended will require at least one member of a Commission to be
either a former Commonwealth judicial officer or a former judge of a State or Territory Supreme
Court. This amendment operates in conjunction with Amendment 3 to expressly exclude a serving
judge of a State or Territory from being appointed as a member of a Commission.
Amendment 3 amends clause 14 of the Bill to exclude a serving judge of a State or Territory from
being appointed as a member of a Commission, consistently with the approach to serving federal
judges. Amendment 1 inserts a definition of `Commonwealth or State judicial officer' to mean a
Commonwealth judicial officer or a judge or justice of a court of a State or Territory.
Amendment 4 clarifies that the restriction preventing parliamentary presiding officers from
disclosing the contents of a separate `sensitive' report under subclause 48(6) of the Bill operates
subject to clause 82.
Subclause 48(6) of the Bill enables a Commission to include certain findings, conclusions or
evidence in a separate report and give that report to the parliamentary presiding officers. If the
parliamentary presiding officers are given a separate report, they must not cause a copy to be laid
before the Senate or House but must make it available for inspection by Members, Senators and the
person who was the subject of an investigation.
This amendment operates in conjunction with Amendments 13 and 14. Clause 82 of the Bill
provides a process for the handling of records of a Commission that are no longer needed, to ensure
appropriate subsequent control and access. Amendment 13 clarifies the process under clause 82 for
the handling by presiding officers of a separate `sensitive' report (see below).
Amendment 5 inserts a new paragraph into subclause 67(1). The effect of the amendment is to
clarify the application of subsection 16(6) of the Parliamentary Privileges Act 1987 to a
Commission so that evidence of proceedings of a Commission can be used in a prosecution of
offences under the Bill relating to a Commission's investigation.
Subclause 67(1) deems the proceedings of a Commission, and evidence taken before a
Commission, to be taken to be the same as proceedings and evidence taken before a
Parliamentary committee for the purposes of section 10 and subsections 16(3), (4) and (6) of the
Parliamentary Privileges Act 1987.
Subsection 16(6) of the Parliamentary Privileges Act 1987 provides that in relation to a prosecution
for an offence against that Act or an Act establishing a committee, section 16 of that Act does not
prevent or restrict the admission of evidence in relation to proceedings in Parliament to which the
offence relates.
Because specific offences relating to a Commission's investigation are provided for under the Bill,
this amendment would clarify that, for the purposes of section 10 and subsections 16(3), (4) and (6),
the Bill is taken to be `an Act establishing a committee'.
Amendment 6 amends the numbering in clause 70 consequential to removal of subclause 70(2)
under Amendment 7 (see below).
Amendment 7 removes subclause 70(2) from the Bill. Subclause 70(2) of the Bill provides that
restrictions on outside employment do not apply for a Commission member who is a judge of a
State or Territory Supreme Court. This provision is no longer necessary, because Amendments 3
and 12 would expressly exclude a judge of a State or Territory court from being a member of a
Commission.
Amendment 8 removes subclause 71(4) from the Bill. Subclause 71(4) of the Bill provides that a
Commission member who is a judge of a State or Territory Supreme Court is not entitled to
remuneration as a Commission member under the Bill. This provision is no longer necessary,
because Amendments 3 and 12 would expressly exclude a judge of a State or Territory court from
being a member of a Commission.
Amendment 9 removes the heading to subclause 73(1). The heading makes reference to Supreme
Court judges who may be members of a Commission. This is no longer necessary, because
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Amendments 3 and 12 expressly exclude a judge of a State or Territory court from being a member
of a Commission.
Amendment 10 removes subclauses 73(3) and (4) of the Bill. Subclauses 73(3) and (4) provide for
termination or cessation of appointment where a member of a Commission is a State or Territory
Supreme Court judge. These provisions are not necessary, as Amendments 3 and 12 expressly
exclude a judge of a State or Territory court from being a member of a Commission.
Amendment 11 removes the current heading to subclause 73(5) and inserts `Member who becomes
Commonwealth or State judicial officer'. This amendment is consequential to Amendment 12,
which would provide that a member of a Commission who becomes a Commonwealth or State
judicial officer ceases to be a member of a Commission.
Amendment 12 amends subclause 73(5) to provide that a member of a Commission who becomes
a Commonwealth or State judicial officer ceases to be a member of a Commission. Amendment 1
inserts a definition of `Commonwealth or State judicial officer' which will mean a Commonwealth
judicial officer or a judge of a court of a State or Territory. This amendment is consistent with the
approach of excluding serving judges of a State or Territory court, as well as serving
Commonwealth judicial officers, from being appointed as members of a Commission (see
Amendment 3).
Amendment 13 inserts a new subclause (1A) into clause 82 to provide for a process for the
handling by parliamentary presiding officers of a separate `sensitive' report where it is no longer
needed and clarify future control of and access to the report.
The amendment will apply only to separate `sensitive' reports which are given to the parliamentary
presiding officers under subclause 48(6). This process does not apply to reports of a Commission
under subclause 48(1) of the Bill which will be presented to each House of Parliament. Subclause
48(1) of the Bill requires a Commission to provide a report to the parliamentary presiding officers
for presentation to each House of Parliament as soon as practicable after it finishes its investigation.
The amendment will apply where a Commission has given its records to a House of a Parliament
under subclause 82(1) of the Bill and the parliamentary presiding officers have been given a
separate `sensitive' report under subclause 48(6) which they no longer need. In these
circumstances, the amendment will require the parliamentary presiding officers to give the separate
`sensitive' report to the House of Parliament which will be responsible for other records of a
Commission under subclause 82(1) of the Bill.
The report would then be taken to be a Class A parliamentary document for the purposes of the
Archives Act 1983 consistent with other records of a Commission (see Amendment 14 below).
Amendment 14 includes in subclause 82(2) of the Bill references to new subclause 82(1A) to
ensure that a separate `sensitive' report given to a House of Parliament by the parliamentary
presiding officers will be taken to be a Class A parliamentary document.
The effect of the amendment is to provide for subsequent control of and access to the separate
`sensitive' report in a manner consistent with other records of a Commission.
Parliamentary presiding officers have responsibilities and powers in relation to Class A
Parliamentary records under the Archives Act 1983 and the Archives (Records of Parliament)
Regulations 1995.
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