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2010 - 2011 - 2012
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
JUDICIAL MISBEHAVIOUR AND INCAPACITY (PARLIAMENTARY COMMISSIONS) BILL 2012
REVISED EXPLANATORY MEMORANDUM
(Circulated by the authority of the Attorney-General,
the Hon Nicola Roxon MP)
JUDICIAL MISBEHAVIOUR AND INCAPACITY (PARLIAMENTARY COMMISSIONS) BILL 2012
GENERAL OUTLINE
1. This Bill, in conjunction
with the Courts
Legislation Amendment
(Judicial Complaints)
Bill 2012, is designed to
introduce greater
transparency and
accountability in
handling of complaints
about judicial officers
in the federal courts.
2. On 18 March 2011, the
former Attorney-General,
the Hon Robert McClelland
MP, announced significant
reforms to federal
judicial complaints
handling.
3. Australia is well-served
by its judiciary, and
that judicial
independence and
impartiality are vital to
the smooth administration
of justice. Establishing
a transparent, impartial
and accountable system of
judicial complaints
handling is intended to
support judicial
independence and
strengthen public
confidence in the federal
judiciary.
4. The Bill provides a
standard mechanism to
assist the Parliament in
its consideration of
removal of a judge or
federal magistrate from
office under the
Constitution. Paragraph
72(ii) of the
Constitution provides
that Justices of the High
Court and other courts
created by the Parliament
shall not be removed
except by the Governor-
General in Council, on an
address from both Houses
of the Parliament in the
same session, praying for
such removal on the
ground of proved
misbehaviour or
incapacity.
5. The establishment of a
mechanism to assist the
Parliament in considering
removal of a judge from
office has been the
subject of a significant
amount of commentary
since the inception of
the Commonwealth. While
instances of removal of
judges from office in
Australia have been
extremely rare, it is
important that a clear
framework is in place in
the event that such a
circumstance were to
arise. Currently, there
is no standard mechanism
by which allegations
about misbehaviour or
incapacity against
federal judicial officers
would be investigated to
assist Parliament's
consideration of removal
of a federal judicial
officer under paragraph
72(ii) of the
Constitution.
6. The Bill creates an
independent, transparent
and accountable framework
by enabling the
establishment of
Parliamentary Commissions
to investigate specified
allegations about
misbehaviour or
incapacity in relation to
federal judicial officers
when required.
Role and nature of a Commission
7. A Commission, as provided
for under the Bill, would
be established following
a resolution by each
House of the Parliament
that it be established to
investigate specified
allegations of
misbehaviour or
incapacity of a specified
Commonwealth judicial
officer. It would be
able to inquire into any
federal judicial officer,
including a Justice of
the High Court of
Australia.
8. The role of a Commission
under the Bill would be
to inquire into
allegations and gather
information and evidence
so the Parliament could
be well informed in its
consideration of the
removal of a judge. The
character of a
Commission's role would
be investigative as it
would not determine whether facts are proved or make recommendations to the
Parliament about the removal of a judge. A Commission's focus would be to
consider the threshold question of whether there is evidence of conduct by
a judicial officer that may be capable of being regarded as misbehaviour or
incapacity and report on these matters to the Houses of Parliament.
9. The Bill supports the
Constitutional role of
the Houses of the
Parliament in determining
whether or not
allegations of judicial
misbehaviour or
incapacity are proved.
10. The Bill provides a
framework for a
Commission to assist the
Parliament where
necessary in discharging
its responsibilities
under paragraph 72(ii) of
the Constitution. Under
the Bill, a Parliamentary
Commission would be a
joint Parliamentary body
with its own legal
status.
11. The Bill supports a
Commission's role as a
Parliamentary body
through its governance
structure. The
Department of the House
of Representatives or the
Department of the Senate
would provide
administrative support to
a Commission.
12. Many privileges and
immunities of the
Parliament would apply to
a Commission in a similar
way as a committee of a
House of the Parliament,
although the Bill
provides specific powers
and offences in respect
of a Commission. The
Parliament would have
effective control of the
records of a Commission,
which ensures protection
equivalent to protection
provided for
Parliamentary records.
Processes of a Commission
13. The process to be
followed for a
Parliamentary Commission
is set out in the Bill.
14. A Commission would
conduct its
investigations in an
inquisitorial, rather
than adversarial, manner.
A Commission would have
appropriate, modern
investigative and inquiry
powers, including the
power to require
witnesses to appear at a
Commission hearing, take
evidence on oath, conduct
hearings in private,
require production of
documents or things, and
issue search warrants.
15. A Commission would be
required to act in
accordance with the rules
of natural justice, with
specific procedures
included to ensure
transparency and
procedural fairness for
judicial officers who
were the subject of an
investigation.
16. A Commission would
provide a report to the
Houses of Parliament
through each of the
Parliamentary presiding
officers. A Commission
may provide a separate
report for access by only
members and Senators and
the Commonwealth judicial
officer who is the
subject of investigation
where a Commission
believed sensitive
material may cause harm
if laid before the
Houses.
17. The Bill does not include
a standard of proof a
Commission would consider
needed to be met before
reporting to the
Parliament. Under
paragraph 72(ii) of the
Constitution, it is for
the Houses of Parliament
to consider whether
conduct of a judicial
officer amounted to
proved misbehaviour or
incapacity. A Commission
would report on whether
conduct could be capable
of being regarded by the
Parliament as proved
misbehaviour or
incapacity.
Ensuring judicial independence
18. Current and former
Commonwealth judicial
officers would be
exempted from the
application of coercive
powers of a Commission.
This is appropriate to
support judicial
independence under
Chapter III of the
Constitution. The
framers of section 72 of
the Constitution aimed to
achieve a high degree of
independence of the
judiciary from the other
branches of government,
while providing a
mechanism for the removal
of unfit judges. It
would not be appropriate
for the Parliament to
require judicial officers
to give evidence or be
subject to search
warrants issued by a
Commission.
19. Parliamentary
Commissions, as provided
for under the Bill, will
provide the Parliament
with a clear, certain and
accountable mechanism to
consider the removal from
office of a federal
judicial officer under
the Constitution. In
this way, the measures
provided under the Bill
will strengthen public
confidence in the federal
judiciary while
supporting the separation
of powers and
independence of the
judiciary.
FINANCIAL IMPACT STATEMENT
20. The proposed Bill will
not have any significant
financial impact on
commencement.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011
Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012
21. This Bill is compatible
with the human rights and
freedoms recognised or
declared in the
international instruments
listed in section 3 of
the Human Rights
(Parliamentary Scrutiny)
Act 2011.
Overview of the Bill
22. The Bill provides a
standard mechanism to
assist the Parliament in
its consideration of
removal of a judge or
federal magistrate from
office under the
Constitution. Paragraph
72(ii) of the
Constitution provides
that Justices of the High
Court and other courts
created by the Parliament
shall not be removed
except by the Governor-
General in Council, on an
address from both Houses
of the Parliament in the
same session, praying for
such removal on the
ground of proved
misbehaviour or
incapacity.
23. The purpose of the Bill
is to create an
independent, transparent
and accountable framework
by enabling the
establishment of
Parliamentary Commissions
to investigate
allegations referred to
the Parliament for
consideration under
paragraph 72(ii) of the
Constitution.
24. A Commission, as provided
for under the Bill, would
be established following
a resolution by each
House of the Parliament
that it be established to
investigate specified
allegations of
misbehaviour or
incapacity of a specified
Commonwealth judicial
officer. It would be
able to inquire into any
federal judicial officer,
including a Justice of
the High Court of
Australia.
25. This Bill operates in
conjunction with the
Courts Legislation
Amendment (Judicial
Complaints) Bill, which
deals with complaints
processes that operate
within the federal courts
other than the High
Court.
Human rights implications
26. This Bill engages the
right to a fair trial and
the right to privacy and
reputation under Articles
14 and 17 respectively of
the International
Covenant on Civil and
Political Rights
('ICCPR'), and the right
not to be unjustly
deprived of work under
Article 6 of the
International Covenant on
Economic, Social and
Cultural Rights
('ICESCR'). The Bill
also engages the right to
respect for privacy and
the right to work and
employment under
Articles 22 and 27
respectively of the
Convention on the Rights
of Persons with
Disabilities ('CRPD').
Right to a fair hearing and fair trial
27. Article 14 of the ICCPR
protects the right to a
fair trial and fair
hearing. The main factor
when considering
'fairness' is whether
both parties have been
afforded a reasonable
opportunity to present
their case, including the
presentation of evidence,
under conditions that do
not put either party at a
substantial disadvantage.
28. A Parliamentary
Commission is established
to investigate specified
allegations of
misbehaviour or
incapacity of a specified
Commonwealth judicial
officer so that the
Parliament can be well
informed when considering
removal of a judge from
office. The character of
a Commission's role would
be investigative, rather
than adjudicative. A
Commission would not
determine whether facts
are proved or make
recommendations to the
Parliament about the
removal of a judge from
office. Under paragraph
72(ii) of the
Constitution, it is for
the Houses of Parliament
to consider whether
conduct of a judicial
officer amounted to
proved misbehaviour or
incapacity.
29. The Bill positively
advances the right to a
fair hearing by a
competent, independent
and impartial body
established by law by
applying these principles
to a Commission. The Bill
provides for public
hearings, while allowing
a Commission to balance
public interests with the
privacy and reputation of
the federal judicial
officer involved on a
case by case basis. The
Bill also enables a
judicial officer who is
the subject of an
investigation to attend
and participate in
hearings.
30. The Bill provides for
appropriate protections
for those who are
connected with a
Commission (such as
members of the
Commission, and witnesses
and lawyers who appear at
a hearing of a
Commission) similar to
those applying to other
Parliamentary committees
so that information
provided to a Commission
would not prejudice a
person's right to a fair
trial in any subsequent
criminal proceedings.
31. In particular, subsection
16(3) of the
Parliamentary Privileges
Act 1987 is taken to
apply to the proceedings,
report and evidence of a
Commission. The
application of subsection
16(3) of the
Parliamentary Privileges
Act 1987 would operate to
prevent reliance on any
conclusions in a
Commission report in any
subsequent criminal
proceedings. This
provides adequate
protection for judicial
officers who may be
liable to prosecution
based on the findings in
a Commission report. It
upholds the right to be
presumed innocent until
proved guilty according
to law.
32. The Bill provides that a
person is not excused
from producing documents
or answering questions
relevant to a
Commission's
investigation on the
ground that it might tend
to incriminate them.
While this might limit
rights under Article
14(3)(g) of the ICCPR not
to be compelled to
testify against himself
or herself or to confess
guilt, the limitation is
reasonable, necessary and
proportionate. The
Parliament's
consideration under
paragraph 72(ii) of the
Constitution supports
public confidence in the
independence and
impartiality of the
federal judiciary. The
treatment of self-
incrimination is
appropriate to facilitate
the ability of a
Commission to obtain
relevant evidence for the
investigation, so that
they may provide a
comprehensive report and
assist the Parliament in
its consideration of
removal of a judge under
paragraph 72(ii) of the
Constitution. The Bill
provides for use and
derivative use
protections where self-
incriminatory information
is provided to a
Commission. These
protections will restrict
the use of self-
incriminatory information
in later court
proceedings or to gather
evidence against a person
who has disclosed self-
incriminatory
information.
Right to privacy and reputation
33. Article 17 of the ICCPR
prohibits arbitrary or
unlawful interference
with an individual's
privacy, family, home or
correspondence, and
protects a person's
honour and reputation
from unlawful attacks.
Article 22 of the CRPD
provides a corresponding
right to privacy to
Article 17 of the ICCPR
for persons with
disabilities.
Specifically, Article 22
requires the privacy of
personal, health and
rehabilitation
information of persons
with disabilities to be
protected on an equal
basis with others.
34. While the Bill may
limit aspects of these
rights in certain
circumstances, the
limitations are
reasonable, necessary and
proportionate.
35. A Commission, as provided
for under the Bill, may
deal with personal or
sensitive information for
the purposes of
investigating specified
allegations of
misbehaviour or
incapacity of a judicial
officer. The right to
privacy and reputation is
important for two
particular classes of
people affected by the
Bill:
a) the federal judge who is the subject of a Commission's investigation,
and
b) a person who may give evidence or otherwise be involved in a
Commission's investigation.
36. The Bill provides for
clear and transparent
powers and processes for
investigation by a
Commission, which enables
a Commission to
appropriately assess
rights to privacy and
reputation on a case by
case basis, and balance
competing public
interests in the removal
of unfit judicial
officers where necessary.
Specific protections
contained in the Bill
include the ability of a
Commission to hold
hearings in private,
offences for unauthorised
publication of
information, and
restrictions on
publication of private
information in a
Commission's report.
Where a Commission is
investigating a judicial
officer who may have a
disability in relation to
an allegation of
incapacity, the Bill
includes a number of
provisions that support
judges who are the
subject of an
investigation in a way
that also protects the
privacy of personal
information. For
example:
. a Commission is not bound by the rules of evidence and may be informed on
any matter in any manner it thinks fit. This provision provides
flexibility for a Commission to be able to appropriately and sensitively
inform itself in relation to issues of personal incapacity (clause 19).
. a Commission must act in accordance with the rules of natural justice
(clause 20). This includes requirements for a Commission to provide a
judicial officer with opportunity to comment on material received by a
Commission and allow a judicial officer to obtain and present medical
evidence in relation to their personal capacity. The provisions also
provide opportunities for a judicial officer to respond to material at
intervals throughout an investigation, enabling a judicial officer to
provide comment should circumstances of any alleged incapacity change.
. a Commission must hold its hearings in public, but may direct that all or
part of its hearings be held in private if satisfied it is desirable to
do so (clause 23). This would enable a Commission to accommodate the
particular sensitivities of a complaint or a condition affecting a
judicial officer. The Bill specifies who may be present at a private
hearing, and creates an offence for unauthorised presence at hearing.
. Current and former judicial officers are exempted from being compelled as
a witness before a Commission (clause 25).
. a Commission has the ability to prepare a separate report on sensitive
matters (subclause 48(6)). This enables personal and sensitive
information to be protected, when considered appropriate by a Commission.
The Bill provides a Commission with discretion to enable an investigation
to be tailored to the particular circumstances of each case and to balance
competing interests, such as respect for privacy and the desirability of
open and transparent proceedings.
37. The Bill empowers a
Commission, or authorised
member of a Commission,
to issue a search warrant
in circumstances where:
. a Commission has reasonable grounds for suspecting that there may be,
within 24 hours, documents or things connected with the matter a
Commission is investigating, and
. that if a notice were given for the documents or things, the documents
or things might be concealed, lost, mutilated or destroyed.
38. It is appropriate to
confer investigative and
administrative functions
associated with a
Commission on the
Commission, rather than
serving judges, given the
special nature of its
role investigating
allegations about
judicial misbehaviour or
incapacity.
39. A Commission's role is
limited to investigating
an allegation of
misbehaviour or
incapacity against a
Commonwealth judicial
officer specified through
a resolution of the
Parliament. This limits
the scope of the issue
and execution of search
warrants on a person's
family or home. Search
warrants cannot be issued
on the premises of a
current or former
Commonwealth judicial
officer.
40. Taking into account that
it is a Commission
issuing search warrants,
additional safeguards
apply. A Commission is
required to keep a
written record of the
reasons for issuing a
search warrant. This
promotes transparency and
accountability in the
process of issuing search
warrants. These reasons
will become part of the
records of a Commission,
which will be given to a
House of the Parliament
where no longer needed.
This offers additional
scrutiny of a
Commission's actions.
Right not to be unjustly deprived of work
41. The UN Committee on
Economic Social and
Cultural Rights has
stated that the right
under Article 6(1) of
ICESCR encompasses the
right not to be unjustly
deprived of work,
requiring security
against unfair dismissal.
42. The Bill does not provide
for a Commission to
remove or dismiss a
judicial officer.
Federal judicial officers
have security of tenure
under the Constitution.
Paragraph 72(ii) of the
Constitution provides the
federal judicial officers
shall not be removed
except by the Governor-
General in Council, on an
address from both Houses
of the Parliament in the
same session, praying for
such removal on the
ground of proved
misbehaviour or
incapacity.
43. A Commission's role is
limited to inquiring into
allegations specified in
a resolution of the
Houses of the Parliament
and gathering information
and evidence so the
Parliament could be well
informed in its
consideration of the
removal of a judge. The
Bill would enable this
process to occur in
accordance with clear and
transparent processes.
Right to work and employment on an equal basis
Article 27 of the CRPD protects the right of persons with disabilities to
work on an equal basis with others. This includes protection against
discrimination in the workplace and provision of reasonable accommodation
to persons with disabilities in the workplace.
The Bill does not directly engage the right of persons with disabilities to
work on an equal basis with others. Rather, the Bill establishes a process
for investigating allegations of misbehaviour or incapacity.
Under the Bill, a Commission is not empowered to remove a judicial officer
from office. Federal judicial officers have security of tenure under the
Constitution. Paragraph 72(ii) of the Constitution is the only basis on
which a judicial officer may be removed from office. Paragraph 72(ii)
provides that federal judicial officers shall not be removed except by the
Governor-General in Council, on an address from both Houses of the
Parliament in the same session, praying for such removal on the ground of
proved misbehaviour or incapacity. The Bill does not seek to define or
limit the concept of incapacity as a constitutional basis for removal of a
judge from office under paragraph 72(ii) of the Constitution.
The Bill appropriately balances public interest considerations of public
confidence in the judiciary and the rights of individual judicial officers
by establishing a process for investigation of allegations of incapacity in
relation to a judicial officer who may have a disability.
A Commission established under the Bill would not limit Parliament's role
under paragraph 72(ii) of the Constitution. A Commission's role is limited
to inquiring into allegations specified in a resolution of the Houses of
the Parliament and gathering information and evidence so the Parliament
could be well informed in its consideration of the removal of a judge under
paragraph 72(ii) of the Constitution.
The Bill is not discriminatory in dealing with allegations relating to
incapacity. The Bill provides clear and transparent powers and processes
for a Commission's investigation. For example:
. The Bill requires a Commission to act in accordance with the rules of
natural justice and includes opportunities for a judicial officer who is
the subject of an investigation, to respond to allegations involving
issues of personal incapacity.
. A Commission may hold a hearing at any place in Australia determined by
the Commission. This provision allows a Commission to be considerate of
a judicial officer who may have limited capacity to travel when
determining the location(s) of a hearing. The Bill provides that the
procedure at the hearing is as the Commission directs and the judicial
officer who is the subject of a Commission's investigation may attend and
participate in the hearing with the assistance of legal representation.
The Bill is consistent with and generally advances the protection of these
rights. To the extent that it may also limit these rights, those
limitations are aimed at a legitimate objective and are reasonable,
necessary and proportionate.
Conclusion
44. The Bill is compatible
with human rights because
it advances the
protection of human
rights, in particular for
right to a fair trial,
the right to privacy and
reputation, and the right
not to be unjustly
deprived of work. To the
extent that it may also
limit human rights, those
limitations are
reasonable and
proportionate.
NOTES ON CLAUSES
Part 1 - Preliminary
Clause 1 - Short Title
45. This clause provides for
the Bill to be cited as
the Judicial Misbehaviour
and Incapacity
(Parliamentary
Commissions) Act 2012.
Clause 2 - Commencement
46. This clause provides for
the commencement of each
provision of the Bill.
47. Subclause 2(1) provides
that each provision of
the Act specified in
column 1 of the table set
out in the subclause
commences, or is taken to
have commenced, in
accordance with column 2
of the table. Any other
statement in column 2 has
effect according to its
terms.
48. Item 1 in the table
provides that sections 1
and 2 of the Bill (and
anything in the Bill not
elsewhere covered by the
table) will commence on
the day on which the Bill
receives the Royal
Assent.
49. Item 2 in the table
provides that clauses 3
to 70 commence on a
single day to be fixed by
Proclamation. However,
if any of those
provisions do not
commence within the
period of 6 months
beginning on the day the
Bill receives Royal
Assent, they will
commence on the day after
the end of that period.
The delayed commencement
of clauses 3 to 70
provides the required
time to implement
regulations to support
the establishment of a
Commission.
50. Subclause 2(2) provides
that any information in
column 3 of the table is
not part of the Act. It
also clarifies that
information may be
inserted in column 3, or
information in it may be
edited, in any published
version of the Act.
Clause 3 - Object of this Act
51. This clause specifies the
object of the Act.
52. Subclause 3(1)
establishes the object of
the Act being to provide
for a Commission to be
established by the Houses
of Parliament to
investigate and report on
a specified allegation or
allegations of
misbehaviour or
incapacity of a specified
Commonwealth judicial
officer, so that the
Parliament may be well-
informed to consider
whether to pray for the
judge's removal under
paragraph 72(ii) of the
Constitution.
53. The role of a Commission
is to conduct an
independent investigation
to assist the
Parliament's
consideration of removal
of a judicial officer
under paragraph 72(ii) of
the Constitution (see
General Outline of this
Bill). Clause 7 of the
Bill enables Commissions
to be established when
required.
54. Subclause 3(2) is
inserted to avoid doubt.
It confirms that it is
not implied that a
separate Act is needed
for a Commission to be
established, or that a
Commission is the only
means by which the
Parliament can be
informed under paragraph
72(ii) of the
Constitution. The
Parliament may still
choose other methods to
investigate an allegation
of misbehaviour or
incapacity of a
Commonwealth judicial
officer.
Clause 4 - Guide to this Act
55. This clause inserts a
guide to the Bill. The
guide will assist readers
to understand the purpose
and content of the Bill,
and to more easily
navigate through the Bill
to find relevant
provisions.
Clause 5 - Extension to external Territories
56. This clause extends the
operation of the Bill to
every external Territory.
Clause 6 - This Act binds the Crown
57. Subclause 6(1) provides
that the Crown is bound
by the Bill in each of
its capacities.
58. Subclause 6(2) provides
that the Crown is not
liable to be prosecuted
for an offence.
Clause 7 - Definitions
59. This clause defines
various terms used in the
Bill. The definitions
are consistent with other
Acts including the Crimes
Act 1914 and the
Parliamentary Service Act
1999.
60. 'Acquisition of property'
is defined to have the
meaning given by clause
37. Clause 37 provides
for compensation for
acquisition of property
in certain circumstances.
61. 'Australia' is defined to
include the external
Territories when used in
a geographical sense.
Clause 5 extends the Bill
to every external
Territory.
62. 'Australian law' is
defined to mean a law
(whether written or
unwritten) of the
Commonwealth, a State or
Territory. This
definition would cover
both legislation and
common law. The term is
used in clauses 19, 50,
and 66.
63. 'Commission' is defined
to mean a Commission
established by clause 9
of this Bill. Clause 9
enables the establishment
of Commissions on an ad
hoc basis.
64. 'Commonwealth judicial
officer' is defined to
mean a Justice of the
High Court, a judge or
justice of a court
created by the Parliament
(other than the Federal
Magistrates Court), and a
Federal Magistrate of the
Federal Magistrates
Court. This definition
creates consistent
terminology in the Bill
and enables a Commission
to be established to
investigate allegations
about any federal
judicial officer.
65. 'Commonwealth or State
judicial officer' is
defined to mean a
Commonwealth judicial
officer or a judge or
justice of a court of a
State or Territory.
'Commonwealth judicial
officer' is defined
separately in clause 7 of
the Bill, and is used
distinctly from
'Commonwealth or State
judicial officer'.
66. 'Constable' is defined to
have the same meaning as
in the Crimes Act 1914.
'Constable' is defined in
section 3 of the Crimes
Act 1914 to mean a member
or special member of the
Australian Federal Police
or a member of the police
force or police service
of a State or Territory.
67. 'Conveyance' is defined
to have the meaning given
by clause 27. Clause 27
provides a mechanism for
arrest of a witness
failing to appear (see
definition of 'dwelling
house'). Under clause
27, 'conveyance' includes
a vessel, aircraft or
vehicle.
68. 'Damage' is defined, in
relation to data, to
include damage by erasure
of data or addition of
other data. This
definition is relevant
for clauses 29 and 40 of
this Bill, which refer to
damage to electronic
equipment. The
definition does not limit
the ordinary meaning of
damage in relation to its
other uses in the Bill.
69. 'Dwelling house' is
defined to have the
meaning given by clause
27. Clause 27 provides a
mechanism for arrest of a
witness failing to
appear, including at
dwelling houses. Under
clause 27, 'dwelling
house' includes a
conveyance, and a room in
a hotel, motel or
boarding house or club,
in which people
ordinarily retire for the
night. 'Conveyance' is
also defined in this
clause.
70. 'Federal Magistrate' is
defined to mean a Federal
Magistrate of the
Federal Magistrates
Court.
71. 'Incapacity' is defined
to have (other than in
clause 73) the same
meaning as in section 72
of the Constitution. It
is for the Parliament to
determine whether an
allegation satisfies the
requirements of proved
misbehaviour or
incapacity for the
purposes of paragraph
72(ii) of the
Constitution (see also
definition of
'misbehaviour'). Clause
73 provides for the
termination of members on
grounds, including for
misbehaviour or
incapacity. These terms,
as used in clause 73,
have their ordinary
meaning. This is
appropriate because of
the different context in
which the term is used.
72. 'Just terms' has the
meaning given by clause
43. Clause 43 provides
for compensation for
acquisition of property
in certain circumstances.
73. 'Lawyer' is defined to
mean 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. This is a
broad definition to
enable legal
representation from a
variety of locations.
74. 'Member' is defined to
mean a member of a
Commission, and includes
the presiding member.
Clause 13 provides for
membership of a
Commission. A member is
to be appointed in
accordance with clause
14.
75. 'Misbehaviour' is defined
to have the same meaning
as in section 72 of the
Constitution. It is for
the Parliament to
determine whether an
allegation satisfies the
requirements of proved
misbehaviour or
incapacity for the
purposes of paragraph
72(ii) of the
Constitution (see also
definition of
'incapacity').
76. 'Official inquiry' is
defined to have a meaning
affected by clause 19.
Subclause 19(5) provides
for certain inquiries to
be included in the
expression. It is
distinguished from an
'official investigation'.
77. 'Official investigation'
is defined to have a
meaning affected by
clause 19. Subclause
19(6) provides for
certain investigations to
be included in the
expression. It is
distinguished from an
'official inquiry'.
78. 'Parliamentary presiding
officer' is defined to
mean the President of the
Senate or the Speaker of
the House of
Representatives.
Provisions of the Bill
enable the Parliamentary
presiding officers to act
jointly where specified.
79. 'Premises' is defined to
include:
. a structure, building, vessel, aircraft or vehicle;
. a place (whether or not enclosed or built on); or
. a part of a structure, building, vessel, aircraft or vehicle or a
place (whether or not enclosed or built on).
80. The term 'premises' is
broader than the
definition.
81. 'Presiding member' is
defined to mean a member
of a Commission appointed
as the presiding member
by force of subclause
14(3).
82. 'Proved', in relation to
misbehaviour or
incapacity, has the same
meaning as in section 72
of the Constitution. It
is for the Parliament to
determine whether an
allegation satisfies the
requirements of proved
misbehaviour or
incapacity for the
purposes of
paragraph 72(ii) of the
Constitution.
83. 'Search warrant' is
defined to mean a search
warrant issued under
subclause 28(1).
Subclause 28(1) gives
power to a Commission to
issue a search warrant.
Part 2 - Establishment, functions and membership etc. of Commissions
Clause 8 - Guide to this Part
84. This clause inserts a
guide to this Part of the
Bill. The guide will
assist readers to
understand the purpose
and content of the Part,
and to more easily
navigate through the Part
to find relevant
provisions. This Part
includes the
establishment, functions,
powers and membership of
a Commission.
Clause 9 - Establishment
85. Subclause 9(1) provides
that a Commission will be
established by force of
this clause if each House
of the Parliament passes
in the same session a
resolution that a
Commission be established
to investigate a
specified allegation of
misbehaviour or
incapacity of a specified
Commonwealth judicial
officer. As a Commission
will be established by
force of the Act, rather
than the resolution of
the Houses of Parliament,
a Commission will
continue in existence
where the Parliament is
prorogued.
86. Subclause 9(1) enables
Commissions to be
established when
required, following
resolution by the Houses
of the Parliament, rather
than as a permanent
Commission. The
subclause clearly
outlines the scope of a
Commission's
investigation to
specified allegations
against a specified
Commonwealth judicial
officer, which will need
to be precisely
articulated in the
resolution of the Houses
of the Parliament.
Clause 20 requires
particulars of
allegations to be given
to the Commonwealth
judicial officer who is
the subject of a
Commission's
investigation.
87. This enables each House
of the Parliament to pass
a resolution in the same
terms, rather than
requiring a resolution to
be transmitted between
the Houses for
concurrence.
88. Note 1 to subclause 9(1)
clarifies that a separate
Commission is established
each time both Houses of
Parliament pass a
resolution to this
effect. Separate
Commissions will each
have their own legal
status, and will not be
related to other
Commissions.
89. Note 2 to subclause 9(1)
confirms the operation of
paragraph 23(b) of the
Acts Interpretation Act
1901 that a Commission
can be established to
investigate more than one
allegation of
misbehaviour or
incapacity of a specified
Commonwealth judicial
officer. Each allegation
must be specified in the
resolution by the Houses
of the Parliament.
90. Subclause 9(2) is
inserted to avoid doubt.
The subclause confirms
that a Commission may be
established to
investigate and report in
respect of misbehaviour
or incapacity that is
alleged to have occurred
before, on or after the
clause commences. This
enables a Commission to
be established to
investigate allegations
of past misbehaviour or
incapacity.
Clause 10 - Functions
91. This clause establishes
that the functions of a
Commission are to
investigate an allegation
referred to in clause 9
and report to the Houses
of Parliament its opinion
of whether or not there
is evidence that would
let the Houses of
Parliament conclude that
alleged misbehaviour or
incapacity is proved.
Reports are provided to
each of the Parliamentary
presiding officers for
presentation to each
respective House of the
Parliament in accordance
with clause 48 of this
Bill.
92. Clause 9 requires a
resolution of the Houses
of the Parliament to
include a specified
allegation or specified
allegations of
misbehaviour or
incapacity of a specified
Commonwealth judicial
officer that would be
investigated by a
Commission.
93. The functions of a
Commission are limited to
investigation and
reporting to the
Parliament. The Bill
retains and supports the
role of the Parliament in
determining whether or
not alleged conduct took
place, and whether it
amounts to proved
misbehaviour or
incapacity warranting
removal from office.
Clause 11 - Powers
94. This clause provides a
broad power for the
Commission to do all
things necessary or
convenient to be done for
or in connection with the
performance of its
functions.
Clause 12 - Commission has privileges and immunities of the Crown
95. This clause establishes
the legal status of a
Commission as having the
privileges and immunities
of the Crown.
Clause 13- Membership
96. This clause provides for
the membership of a
Commission.
97. Subclause 13(1) provides
that a Commission will
consist of three members.
Members will be
appointed on the
nomination of the Prime
Minister.
98. Subclause 13(2) requires
the Prime Minister,
before nominating a
member of a Commission,
to consult with the
Leader of the Opposition
in the House of
Representatives. The
requirement to consult on
nomination of members of
a Commission reflects the
structure of a Commission
as a joint Parliamentary
body and the non-
political role a
Commission will undertake
when executing its
function.
99. Subclause 13(3) requires
that at least one member
of a Commission must be
either a former
Commonwealth judicial
officer or a former judge
of the Supreme Court of a
State or Territory.
Inclusion of a member
with judicial experience
is intended to bring
relevant experience and
expertise to a
Commission's conduct of
an investigation.
Clause 14 - Appointment of Members
100. This clause outlines the
procedure for appointment
of members of a
Commission. All
appointments are made on
nomination under clause
13.
101. Subclause 14(1) provides
for the appointment of
members by force of this
subclause if each House
of the Parliament passes,
in the same session, a
resolution to appoint the
member. This provides
certainty for the
appointment of members,
and involves a similar
process to that required
for establishment of a
Commission. The
requirement for each
House of the Parliament
to pass a resolution to
appoint a member reflects
the structure of a
Commission as a joint
Parliamentary body and
the non-political role a
Commission will undertake
when executing its
function.
102. Subclause 14(2) prevents
a person from being
appointed if he or she is
a Commonwealth or State
judicial officer
consistently with the
approach to serving
federal judges.
'Commonwealth or State
judicial officer' is
defined in clause 7.
103. Subclause 14(3) provides
for the appointment of a
member as the presiding
member of a Commission by
force of the clause if:
. the Prime Minister nominates the member to be the presiding member;
and
. each House of the Parliament passes, in the same session, a resolution
to appoint the member as the presiding member.
104. This provides certainty
to the appointment of the
presiding member by a
similar process to that
required for
establishment of a
Commission. A presiding
member will be one of the
three members of a
Commission (see subclause
13(1)).
105. Subclause 14(4)
establishes that members
are appointed on a part
time basis. This
clarifies the status of
membership and is
consistent with the
establishment of
Commissions as required.
Clause 15 - Vacancy in membership
106. This clause establishes
the legal position of a
Commission where a
Commission is not at any
given time properly
constituted in accordance
with the requirements of
clause 13 because one or
more members have ceased
to be a member.
107. Paragraph 15(a) confirms
that a Commission
continues to exist in
these circumstances, even
if there are no remaining
members. This removes
the need to repeat the
process for re-
establishing a Commission
where there are vacancies
in membership.
108. Paragraph 15(b) provides
that a Commission will
consist of remaining
members (if any).
109. Paragraph 15(c) provides
that the Act will
continue to have effect
as if a Commission were
properly constituted.
This enables a Commission
to continue its
investigation of the
specified Commonwealth
judicial officer while
members are replaced.
110. Paragraph 15(d) requires
the Houses of the
Parliament to appoint
replacement members as
soon as practicable in
accordance with the
requirements set out in
clause 13 and 14 of the
Bill. Additional
appointments will be made
under the same procedure
as any other appointment.
Clause 16 - When a Commission ceases to exist
111. This clause provides that
a Commission will cease
to exist upon a joint
written determination of
the Parliamentary
presiding officers, if
they are satisfied under
paragraphs 16(1)(a) and
(b) that either:
. the Commission's functions have been performed, or
. the person in relation to whom an allegation of misbehaviour or
incapacity is being investigated by the Commission has ceased to be
a Commonwealth judicial officer.
This creates certainty about when a Commission ceases to exist.
112. A determination, where
made, must be in writing.
113. Subclause 16(2) provides
that a Commission will
cease to exist at a time
specified in the
determination. The date,
which is specified in the
determination, will be
jointly decided by the
Parliamentary presiding
officers in order to
provide certainty for the
protections afforded by
the Bill, the date
specified is not expected
to be a date in the past.
114. Subclause 16(3) provides
that a determination made
under subclause 16(1)
will not be a legislative
instrument. This
provision is included to
assist readers, as the
instrument is not a
legislative instrument
within the meaning of
section 5 of the
Legislative Instruments Ac
t 2003.
Part 3 - Investigations of Commissions
Division 1 - General
Clause 17 - Guide to this Division
115. This clause inserts a
guide to this Division of
the Bill. The guide will
assist readers to
understand the purpose
and content of the
Division, and to more
easily navigate through
the Division to find
relevant provisions.
This Division contains
rules relating to how a
Commission conducts its
investigation.
Clause 18 - Decision of questions
116. This clause establishes
the manner in which a
Commission will decide
questions before it.
117. Subclause 18(1) provides
that questions before a
Commission will be
determined in accordance
with the view of the
majority of members.
118. Subclause 18(2) requires
that, if the members are
not unanimous, the
opinion of each member on
the question must be
recorded.
119. The note to subclause
18(2) clarifies that
dissenting views will be
included as part of a
Commission's report given
under clause 48 so that
Parliament has access to
a record of the views of
each member.
Clause 19 - How a Commission is informed
120. Subclause 19(1)
establishes that a
Commission will not be
bound by the rules of
evidence and may be
informed on any matter in
any manner it thinks fit.
This enables a
Commission to choose the
manner of informing
itself that it considers
is most appropriate in
the circumstances,
including how formal
proceedings need to be.
This is consistent with
the investigative
character of a
Commission's role.
121. Subclause 19(2) requires
a Commission to consider
the outcome of any
previous official inquiry
or official investigation
into the allegation to
the extent that the
Commission thinks it
necessary or desirable to
do so. 'Official
inquiry' and 'official
investigation' are
broadly framed.
122. Subclause 19(3) provides
that a Commission will
not be precluded by any
other law or privilege
from accessing evidence
given at, or findings
made as a result of, such
an inquiry or
investigation. It is
appropriate that a
Commission have access to
as much information as
possible to investigate
and report to the
Parliament about an
allegation of
misbehaviour or
incapacity.
123. Subclause 19(4) clarifies
that a Commission's
ability to access
privileged information
under subclause 16(3)
will be subject to the
operation of section 16
of the
Parliamentary Privileges
Act 1987. Section 16 of
the Parliamentary
Privileges Act 1987
relates to Parliamentary
privilege in court or
tribunal proceedings.
124. Subclause 19(5) includes
examples of the type of
proceeding that will be
an 'official inquiry',
including Royal
Commissions. The
examples provided do not
limit the meaning of
official inquiry.
125. Subclause 19(6) includes
examples of the type of
proceeding that will be
an 'official
investigation'. This
will include
investigations conducted
under the judicial
complaints handling
process within the
Federal Court of
Australia, Family Court
of Australia or
Federal Magistrates
Court. This process is
supported by the Court
Legislation Amendment
(Judicial Complaints)
Bill 2012. The examples
provided do not limit the
meaning of official
investigation.
Clause 20 - Natural justice
126. Subclause 20(1) requires
a Commission to act in
accordance with the rules
of natural justice.
127. Subclause 20(2) mandates
steps that a Commission
must take in its
investigation in order to
afford procedural
fairness to a
Commonwealth judicial
officer who is the
subject of a Commission's
investigation. Subclause
20(2) confirms that it
does not limit the
application of the rules
of natural justice in the
context of a Commission's
investigation. The
required steps under
subclause 20(2) are:
. A Commission must give the Commonwealth judicial officer particulars
of the allegation (or allegations) being investigated and offer the
Commonwealth judicial officer an opportunity to make an oral or
written statement to the Commission. It is appropriate that specific
and precise details of each allegation be given to the Commonwealth
judicial officer who is the subject of an inquiry.
. A Commission must offer the Commonwealth judicial officer reasonable
access to any documents or things received by, produced before,
delivered to, or otherwise acquired by a Commission.
. A Commission must not draw inferences adverse to a Commonwealth
judicial officer from the fact that a Commonwealth judicial officer
does not attend or appear at a hearing of a Commission.
. Before a Commission gives a report under subclause 48(1) or (6) of
this Bill, a Commission must give the Commonwealth judicial officer a
draft of the report, provide the judicial officer with a reasonable
opportunity to give comments to the Commission on the draft report,
and consider any timely comments the judicial officer may make to the
Commission on the draft report. This obligation requires a Commission
to consider the comments of the judicial officer on its draft report,
including any separate report it may propose to give, and enables a
Commission to provide its report in circumstances including where a
judicial officer may choose not to make comments.
Division 2 - Investigations
Subdivision A - Guide to this Division
Clause 21 - Guide to this Division
128. This clause inserts a
guide to this Division of
the Bill. The guide will
assist readers to
understand the purpose
and content of the
Division, and to more
easily navigate through
the Division to find
relevant provisions.
This Division outlines a
Commission's powers of
investigation.
Subdivision B - Speed of investigations and openness of hearings
Clause 22 - Speed of investigations
129. This clause requires a
Commission conduct its
investigation as quickly
as proper consideration
of the matters before the
Commission permits. This
provides flexibility for
a Commission to properly
investigate complex
allegations while
balancing the interest in
quick resolution of a
Commission's
investigation and
reporting to the
Parliament.
Clause 23 - Openness of hearings
130. Subclause 23(1) requires
a Commission to hold its
hearings in public while
providing for certain
circumstances where a
Commission may direct
that part or all of its
hearings be heard in
private for certain
reasons outlined in
paragraphs 23(1)(a)(b)
and (c). Clause 24 gives
power to a Commission to
hold a hearing. Other
elements of a
Commission's
investigation are not
required to be held in
public.
131. Subclause 23(2) requires
a Commission, in
considering whether all
or part of a hearing
should be held in
private, to take as the
basis of its
consideration the
principle that it is
desirable that
proceedings should be
held in public; but give
due regard to any reasons
given to the Commission
why a hearing, or part of
a hearing, should be held
in private. This
promotes transparent and
accountable deliberations
of a Commission.
132. The Bill does not limit
the reasons why a
Commission may direct
that proceedings be
conducted in private.
However, reasons may
include circumstances
where highly sensitive
information is to be
presented, or
circumstances in which an
appearance by a person in
a public hearing may
prejudice their safety.
133. Subclause 23(3) requires
a Commission to have
regard to the effect of
holding the hearing in
public on the ability of
the Commonwealth judicial
officer to whom the
investigation relates to
perform his or her duties
as such an officer; and
the independence of, or
public confidence in, the
judiciary and the
Commonwealth judicial
officer who is the
subject of an
investigation.
134. A public hearing may
carry a risk of giving
public currency to
unverified allegations to
which no response can be
made at once. A
Commission will be
required to consider
whether there may be
damage to the judicial
officer concerned and the
institution of which that
judicial officer is a
member.
135. These matters would be
balanced by a Commission
in individual cases.
Subdivision C - Powers of investigations
Clause 24 - Hearings
136. This clause enables a
Commission to conduct
hearings as part of its
investigation, and
specifies requirements
for a hearing.
137. Subclause 24(1) empowers
a Commission to hold a
hearing anywhere in
Australia as the
Commission determines.
This allows flexibility
for a Commission to hold
hearings where it is most
appropriate, depending on
the location of a
Commonwealth judicial
officer who is the
subject of an
investigation. It may
include the external
Territories under clause
4 of this Bill. This
subclause enables the
Commission to have
convenient access to
witnesses, evidence,
documents and other
things.
138. Subclause 24(2) provides
that the procedure at a
hearing is as a
Commission directs,
subject only to explicit
limitations in the Bill.
139. Subclause 24(3) requires
the presiding member to
preside at a hearing. A
presiding member is
appointed by force of
subclause 12(3) of this
Bill.
140. Subclause 24(4) enables
the Commonwealth judicial
officer who is the
subject of an
investigation of a
Commission to attend and
participate in the
hearing, by making
submissions, questioning
witnesses or presenting
evidence, and be
represented by a lawyer
at the hearing. This
provides the judicial
officer with an
opportunity to respond to
the allegation or
allegations if desired.
A Commonwealth judicial
officer may choose not to
attend and participate
and may choose not to
have legal
representation.
141. Subclause 24(5) allows
for questioning of
witnesses if a Commission
determines a matter is
relevant to its
investigation. Subclause
24(5)(a) to (d) prescribe
certain persons who may
question a witness.
142. The term 'question', as
opposed to 'examine' or
'cross-examine' reflects
the non-adversarial
nature of proceedings and
allows broader
investigation into a
matter without being
limited to the rules of
evidence (see clause 19
of this Bill).
143. Subclause 24(6) provides
that a current or former
Commonwealth judicial
officer cannot be
compelled to answer
questions under subclause
24(5). This is
appropriate to support
independence of the
judiciary under Chapter
III of the Constitution
(see General Outline of
this Bill).
144. Subclause 24(7) only
applies where a
Commission has directed
under clause 18 that part
or all of its proceedings
be conducted in private.
Where such a direction
has been made, subclause
24(7) prevents a person
from being present at the
hearing unless they are
within a category
specified in the
subclause. Subclause
24(7) limits the people
who may be present at the
hearing to the following:
. a member of a Commission;
. counsel assisting a Commission;
. the Commonwealth judicial officer who is the subject of investigation
by a Commission;
. a person authorised by a Commission to be present; or
. a lawyer representing a Commonwealth judicial officer or another
person who is authorised by a Commission to be present at the hearing.
145. This allows all relevant
parties, and their legal
representatives, to be
present. Clause 50 makes
it an offence for a
person to be present at a
hearing held by a
Commission otherwise than
in accordance with
subclause 24(7).
Clause 25 - Power to summon witnesses, take evidence and obtain documents
or things
146. This clause provides for
several powers of
investigation for a
Commission, including to
require witnesses to
appear at a hearing,
require production of
documents or things, and
take evidence. The
clause exempts judicial
officers from coercive
powers of a Commission
(see General Outline of
this Bill).
147. Subclause 25(1) enables a
member of a Commission to
give notice to:
. require a person to appear before a Commission at hearing to give
evidence and/or produce a document at a hearing;
. require a witness to produce a document or other thing to a member of
staff of the Commission; or
. require any person to produce a document or other thing to a member of
staff of the Commission.
148. Note 1 to subclause 25(1)
refers to clause 54 as it
relates to self-
incrimination. Clause 54
provides that it is not
an excuse to refrain from
producing a document or
thing as required by a
notice under clause 25 or
answering a relevant
question at a hearing of
a Commission, on grounds
that it might tend to
incriminate a person or
expose the person to a
penalty.
149. Note 2 to subclause 25(1)
points to protections in
clause 65 and 66 for
those who are given a
notice under this clause.
150. Subclause 25(2) sets out
requirements for a
notice. The note to the
subclause clarifies that
clause 26 sets out
additional requirements.
Requirements may also be
prescribed by
regulations.
151. It is an offence for a
person to contravene a
notice given under
subclause 25(1) (see
clauses 51 and 52).
152. Subclause 25(3) allows a
Commission to take
evidence at a hearing on
oath or affirmation.
Subclause 25(3)(a)
enables a member of a
Commission to require a
person appearing as a
witness at the hearing to
give evidence to take an
oath or make an
affirmation in a form
approved in writing by
the presiding officer.
Subclause 25(3)(b)
enables a member of a
Commission, or a person
authorised in writing by
the presiding member, to
administer an oath or
affirmation to a person
appearing as a witness at
the hearing.
153. Subclause 25(4) prevents
a person from giving
evidence to a Commission
by a statement that is
not verified by oath or
affirmation and does not
leave discretion to the
Commission. Clause 53
makes it an offence if a
person who is required to
appear before a
Commission refuses to be
sworn or make an
affirmation.
154. Subclause 25(5) excludes
current and former
Commonwealth judicial
officers from the
application of subclauses
25(1), (3) and (4). The
effect of this subclause
is that a current or
former judicial officer
cannot be given notice
requiring them to appear
at a hearing and give
evidence or produce
documents or things, and
are not required to give
evidence. This is
appropriate to support
judicial independence
under Chapter III of the
Constitution (see General
Outline of this Bill).
155. Subclause 25(6) is
inserted to avoid doubt.
It clarifies that a
current or former
Commonwealth judicial
officer may elect to give
evidence on oath or
affirmation.
Clause 26 - Additional requirements for notices
156. This clause outlines
requirements with which a
member must comply when
giving a notice requiring
appearance or production
of documents under clause
25.
157. Subclause 26(1) requires
that a member be
satisfied that it is
reasonable in all the
circumstances to give a
notice under clause 25.
This reflects appropriate
limitations to a power
that may lead to an
offence where a person
fails to comply (see
clauses 51 and 52).
158. Subclause 26(2) provides
that a time specified in
a notice under clause 25
must be at least 14 days
after the day on which
the person receives a
notice. A person will be
aware of a notice before
they are required to
comply.
159. Subclause 26(3) sets out
requirements of details
to be included in the
notice. A notice given
under paragraph 25(1)(a)
requiring a person to
appear must state that a
person giving evidence
may have a representative
present, and set out the
effect of the following
offence provisions in the
Bill:
. clause 27, which provides for the arrest of a witness who fails to
appear under a notice;
. clause 51, which makes it an offence for a witness failing to
attend a hearing under notice; and
. clause 52, which makes it an offence for a witness to fail to
produce documents or things under notice.
160. Subclause 26(4) requires
a notice requiring a
person to give evidence
to set out as far as
reasonably practicable
the general nature of the
matters in relation to
which a person is to be
questioned. This will
apply unless the member
giving the notice is
satisfied that, in the
particular circumstances,
it would prejudice the
effectiveness of the
hearing to do so.
161. This would allow a person
time to seek legal advice
and gather relevant
documentation or
information relevant to a
Commission's
investigation.
162. The note to subclause
26(4) clarifies that a
current or former
Commonwealth judicial
officer cannot be given a
notice under clause 25.
This is consistent with
judicial independence
under Chapter III of the
Constitution (see General
Outline of this Bill).
Clause 27 - Arrest of witness failing to appear
163. Subclause 27(1) gives
power to the presiding
member to issue a warrant
for a person's
apprehension, where they
have not complied with a
notice requiring the
person to appear at a
hearing of a Commission
as a witness given under
clause 25. Under
subclause 25(6), this
will not apply to current
or former Commonwealth
judicial officers. This
is appropriate to support
judicial independence
under Chapter III of the
Constitution (see General
Outline of this Bill).
164. Under subclause 27(2),
the warrant authorises:
. the apprehension of the witness;
. the witness being brought before the Commission; and
. the detention of the witness in custody for that purpose until he or
she is released by order of the presiding member.
165. Subclause 27(3) allows
the execution of a
warrant by a constable,
subject to procedures for
entering premises,
including use of
reasonable force and
permissible times,
provided in subclauses
27(4) and (5). Clause 7
defines the term
'constable'.
166. Subclause 27(6) defines
the terms 'conveyance'
and 'dwelling house' for
the purposes of the
section (see also
definitions in Clause 7).
Clause 28 - Search warrants
167. Clause 28(1) empowers a
Commission, or authorised
member of a Commission,
to issue a search warrant
where:
. a Commission has reasonable grounds for suspecting that there may be,
within 24 hours, documents or things connected with the matter a
Commission is investigating; and
. that if a notice were given for the documents or things, the documents
or things might be concealed, lost, mutilated or destroyed.
168. It is appropriate to
confer investigative and
administrative functions
associated with a
Commission on a
Commission, rather than
serving judges, given the
special nature of its
role investigating
allegations about
judicial misbehaviour or
incapacity. A
Commission's role is
limited to investigating
an allegation of
misbehaviour or
incapacity against a
Commonwealth judicial
officer specified through
a resolution of the
Parliament. This limits
the scope of the issue
and execution of search
warrants by a Commission.
169. Taking into account that
it is a Commission
issuing search warrants,
special procedures and
safeguards apply. Clause
80 requires a Commission
to keep a written record
of the reasons for
issuing a search warrant.
This promotes
transparency and
accountability in the
process of issuing search
warrants. These reasons
will become part of the
records of a Commission.
Under clause 82 of the
Bill, records of a
Commission will be given
to a House of the
Parliament where no
longer needed.
170. A search warrant issued
under subclause 28(1)
must state the purpose
for which it is issued
(including a reference to
the matter the Commission
is investigating), the
type of entry that is
authorised and the date
on which the warrant
ceases to have effect.
Under clause 34, details
of a search warrant will
need to be given to an
occupier.
171. Under subclause 28(2), a
search warrant will
authorise a named
constable to enter the
premises and search and
seize documents or things
of the relevant kind and
deliver them to a
Commission. 'Constable'
is defined in clause 6 of
this Bill.
172. Under subclause 28(3), a
search warrant must
include a description of
the kind of documents or
things authorised to be
seized.
173. Subclause 28(4)
authorises a constable to
seize additional
documents or things found
during the course of
execution of a search
warrant. This can only
occur if the constable
believes on reasonable
grounds that it is
connected with the matter
a Commission is
investigating and should
be seized to prevent
concealment, destruction
or mutilation.
174. Subclause 28(5) prevents
the premises of a current
or former Commonwealth
judicial officer from
being the subject of a
search warrant. This is
appropriate to support
judicial independence
under Chapter III of the
Constitution.
Clause 29 - Operating electronic equipment
175. This clause enables a
constable in execution of
a search warrant under
clause 28 to exercise
certain powers in
relation to the operation
and seizure of electronic
equipment.
176. Subclause 29(1) enables a
constable to operate
electronic equipment on
the premises. As
electronic equipment
would be a significant
source of information for
a Commission, this
provides for effective
powers to obtain such
information. A constable
will need to have
reasonable grounds for
suspecting the equipment
contains matter connected
to an investigation by a
Commission.
177. Subclause 29(2)
authorises a constable
executing a search
warrant to:
. seize the electronic equipment if the constable has reasonable grounds
for suspecting that the equipment is connected with the matter a
Commission is investigating;
. operate electronic equipment on the premises to put the material in
documentary form; and
. operate electronic equipment on the premises to transfer the material
to a disk, tape or other storage device and remove it from the
premises.
178. Subclause 29(1) must be
exercised in accordance
with the requirements set
out in subclause 29(3)
and (4).
179. Subclause 29(3) provides
that the constable must
only operate electronic
equipment if a constable
believes on reasonable
grounds that the
operation of the
equipment can be carried
out without damage.
'Damage' is defined in
clause 7 of this Bill.
180. Subclause 29(4) further
requires a constable to
be satisfied it is not
possible to transfer the
material on the
electronic devices or
that possession of
certain equipment could
constitute an offence
against a law of the
Commonwealth.
181. Special provisions in
relation to electronic
equipment reflect that
documents or things
relevant to a
Commission's
investigation may be kept
in electronic form. This
clause is supported by
clause 30, which will
allow for expert
assistance to deal with
the electronic equipment,
and clause 40, which will
allow for compensation
for damage to electronic
equipment.
182. This clause will not
apply to the premises of
former or current
Commonwealth judicial
officers (see clause
28(5)). See clause 7 for
the definition of a
'constable'.
Clause 30 - Expert assistance to operate electronic equipment
183. This clause allows for
expert assistance to
operate electronic
equipment in connection
with clauses 28 and 29.
184. Subclause 30(1) outlines
the circumstances where
this clause applies. It
applies where a constable
executing a search
warrant in relation to
premises enters such
premises to search for
material connected with
the matter a Commission
is investigating. As
search warrants cannot be
issued and executed in
relation to premises
occupied by current or
former Commonwealth
judicial officers under
subclause 28(5), this
clause will also not
apply in relation to
current or former
Commonwealth judicial
officers.
185. Subclause 30(2) allows
the constable to secure
any electronic equipment
that is on the premises
if the constable believes
on reasonable grounds
that:
. there is material connected with the matter a Commission is
investigating on the premises;
. the material may be accessible by operating the electronic equipment;
. expert assistance is required to operate the equipment; and
. the material may be destroyed, altered or otherwise interfered with if
the constable does not take action under this subclause.
186. Securing equipment under
this subclause may
include locking it up,
placing a guard or other
means.
187. Subclause 30(3) requires
the constable to give
notice to the occupier of
the premises, or another
person who apparently
represents the occupier
of:
. the constable's intention to secure the equipment; and
. the fact that the equipment may be secured for up to 24 hours.
188. Subclause 30(4) allows
electronic equipment to
be secured until the
earlier of the following
happens:
. the 24-hour period ends;
. the equipment has been operated by the expert.
189. A Commission has the
power under clause 77 of
this Bill to engage
consultants, who may
provide expert assistance
in these matters.
190. Where electronic
equipment is secured and
damage or corruption of
the equipment occurs,
clause 40 enables the
owner or user to seek
compensation from the
Commonwealth.
191. Subclause 30(5) allows a
constable to apply to a
Commission, or a member
authorised in writing by
the Commission, for an
extension of the 24-hour
period if the constable
believes on reasonable
grounds that the
equipment needs to be
secured for more than
that period.
192. Before making the
application, subclause
30(6) requires a
constable to give notice
of their intention to
apply to the occupier of
the premises. This
enables the occupier to
be heard in relation to
that application to a
Commission if they
choose.
193. Subclause 30(7) provides
that a 24-hour period may
be extended more than
once.
194. 'Constable' is defined
under clause 7 of this
Bill.
195. A similar process for
extensions applies under
clause 31.
Clause 31 - Securing other things
196. Subclause 31(1) allows a
constable who enters
premises under a search
warrant to secure a thing
for a period not
exceeding 24 hours if:
. the thing is found in or on the premises in the course of searching
for documents or things of the relevant kind under the warrant;
. the constable believes on reasonable grounds that the thing is
relevant to an indictable offence, evidential material or tainted
property; and
. the constable believes on reasonable grounds that it is necessary to
secure the thing in order to prevent it from being concealed, lost,
mutilated or destroyed before a warrant to seize the thing is
obtained.
197. As a Commission's role is
limited to investigating
specified allegations of
misbehaviour or
incapacity about a
judicial officer, this
clause does not allow
seizure of such material
which is not related to a
Commission's
investigation. This
clause will enable a
constable to secure an
item while a warrant
under the Crimes Act 1914
is sought where it may
otherwise be concealed,
lost or destroyed.
198. Subclause 31(2) allows a
constable to do whatever
is necessary to secure
the thing, including
locking it up, placing a
guard or securing the
thing by any other means.
199. Subclause 31(3) allows a
constable to apply to a
Commission, or a member
authorised in writing by
the Commission, for an
extension of the 24-hour
period if the constable
believes on reasonable
grounds that a thing
needs to be secured in
excess of the 24-hour
period prescribed by
subclause 31(1).
200. Subclause 31(3) requires
a constable to give
notice of their intention
to apply for an extension
of the period to the
occupier of the premises,
so that they may be heard
in relation to that
application.
201. Subclause 31(4) provides
that a 24-hour period may
be extended more than
once.
202. As search warrants cannot
be issued and executed in
relation to premises
occupied by current or
former Commonwealth
judicial officers under
subclause 28(5), this
clause will also not
apply in relation to
current or former
Commonwealth judicial
officers.
203. 'Constable' is defined
under clause 7 of this
Bill.
204. A similar process for
extensions applies under
clause 30.
Clause 32 - Occupier entitled to observe execution of search warrant
205. Subclause 32(1) entitles
an occupier of the
premises to which a
search warrant relates to
observe the execution of
the warrant if the
occupier is present at
the time.
206. Subclause 32(2) provides
that the right to observe
the execution of the
warrant will cease if the
occupier impedes the
execution.
207. Subclause 32(3) qualifies
the right to observe
execution of the search
warrant so as not to
prevent the constable
executing the warrant to
conduct searches in two
or more areas of the
premises at the same
time. This balances the
occupier's right to
observe execution of a
search warrant with
enabling the search
warrant to be executed as
efficiently as possible.
208. As search warrants cannot
be issued and executed in
relation to premises
occupied by current or
former Commonwealth
judicial officers under
subclause 28(5), this
clause will also not
apply in relation to
current or former
Commonwealth judicial
officers.
209. 'Constable' is defined
under clause 7 of this
Bill.
Clause 33 - Occupier to provide constable with facilities and assistance
210. This clause requires the
occupier of premises to
which a search warrant
relates to provide all
reasonable facilities and
assistance for the
effective exercise by the
constable of his or her
powers. The powers of a
constable in execution of
a search are specified
under clause 28, 29, 30
and 31. Failure to
comply with this clause
will amount to an offence
under clause 62.
211. The term 'reasonable
facilities and
assistance' is used
broadly so it can apply
in individual
circumstances to which
the search warrant
relates. It would
include access to all
areas of the premises
necessary to execute the
search warrant,
information necessary for
the use of electronic
equipment under clause 29
and 30 (for example,
provision of passwords
and access codes), and
access to any additional
facilities as required.
212. This obligation on the
occupier is required to
be included in the
content of the search
warrant (subclause 28(3)
of this Bill).
213. As search warrants cannot
be issued and executed in
relation to premises
occupied by current or
former Commonwealth
judicial officers under
subclause 28(5), this
clause will also not
apply in relation to
current or former
Commonwealth judicial
officers.
214. 'Constable' is defined
under clause 7 of this
Bill.
Clause 34 - Details of search warrant to be given to occupier, etc.
215. This clause requires a
constable executing a
warrant to make available
a copy of the search
warrant and identify
themselves to an occupier
of the premises.
216. Subclause 34(b) provides
that where a search
warrant is executed at a
vessel, aircraft or
vehicle, the constable
must make available a
copy of the search
warrant to the
person/apparent person in
control of a vessel,
aircraft or vehicle who
is present at the time.
217. This clause enables an
occupier to obtain
information about the
authority, purpose and
effect of the search
warrant.
218. As search warrants cannot
be issued and executed in
relation to premises
occupied by current or
former Commonwealth
judicial officers under
subclause 28(5), this
clause will also not
apply in relation to
current or former
Commonwealth judicial
officers.
219. 'Constable' is defined
under clause 7 of this
Bill.
Clause 35 - Completing execution of a search warrant after temporary
cessation
220. This clause applies where
a constable executing a
search warrant has
temporarily ceased the
execution of the warrant
and left the premises.
221. Subclause 35(2) allows
the constable to complete
the execution of the
warrant if it is still in
force, provided that the
constable is not absent
for more than an hour, or
not for more than 12
hours if there is an
emergency situation.
Subclause 35(2)(b)(iii)
enables completion of the
warrant where the
constable has been absent
where an occupier gives
written consent to an
extension of time.
222. Subclause 35(3) allows a
constable to apply to the
Commission, or a member
authorised in writing by
the Commission, for an
extension of time of the
12 hour period in
emergency situations
where a constable
believes on reasonable
grounds that the
constable will not be
able to return to the
premises. Under
subclause 35(4) a
constable must, if it is
practicable to do so
before making the
application, give notice
to the occupier of the
premises of the
constable's intention to
apply for an extension.
223. Subclause 35(4) provides
that a Commission, or a
member authorised in
writing by the
Commission, may grant the
application if satisfied
that there are
exceptional circumstances
justifying the extension,
and the extension would
not result in the period
ending after the search
warrant ceases to be in
force. This enables
flexibility where
unexpected circumstances
may arise.
224. As search warrants cannot
be issued and executed in
relation to premises
occupied by current or
former Commonwealth
judicial officers under
subclause 28(5), this
clause will also not
apply in relation to
current or former
Commonwealth judicial
officers.
225. 'Constable' is defined
under clause 7 of this
Bill.
Clause 36 - Completing execution of search warrant stopped by court order
226. This clause enables a
constable to complete the
execution of a search
warrant that has been
stopped by an order of
the court where the order
is later revoked or
reversed on appeal.
227. Clause 36(b) provides the
warrant can only be
completed if it is still
in force when the court
order is revoked or
reversed. If the warrant
has lapsed when the court
order is revoked or
reversed, a member of a
Commission would need to
issue a new warrant under
clause 28.
228. As search warrants cannot
be issued and executed in
relation to premises
occupied by current or
former Commonwealth
judicial officers under
subclause 28(5), this
clause will also not
apply in relation to
current or former
Commonwealth judicial
officers.
229. 'Constable' is defined
under clause 7 of this
Bill.
Clause 37 - Copies of seized things to be provided
230. This clause requires a
constable executing a
search warrant to provide
copies of materials
seized under the warrant
upon the request of an
occupier.
231. Subclause 37(1) will
apply where a search
warrant is being executed
in relation to the
premises, and this search
warrant has resulted in
the seizure of items
which could be readily
copied (including, for
example, a document,
film, computer file,
photograph, a storage
device or other materials
of this nature).
232. Subclause 37(2) allows an
occupier to request the
constable executing the
warrant to give a copy of
the thing or the
information to the
occupier or other person.
233. Subclause 37(3) requires
the constable to comply
with the request as soon
as practicable after the
seizure of the items.
234. Subclause 37(4) qualifies
subclause 37(1) and
provides that the
constable will not be
required to comply with
the request if possession
of the thing or
information by the
occupier or other person
could constitute an
offence against a law of
the Commonwealth.
235. As search warrants cannot
be issued and executed in
relation to premises
occupied by current or
former Commonwealth
judicial officers under
subclause 28(5), this
clause will also not
apply in relation to
current or former
Commonwealth judicial
officers.
236. 'Constable' is defined
under clause 7 of this
Bill.
Clause 38 - Receipts for seized documents or things
237. This clause requires a
constable executing a
search warrant to provide
a receipt for any
document or thing that is
seized in the search.
238. Subclause 38(2) allows
for a receipt to cover
two or more seized
documents or things.
239. This clause has the
effect that a constable
executing a search
warrant will need to
maintain an accurate
record of all items
seized from the
occupier's premises.
240. As search warrants cannot
be issued and executed in
relation to premises
occupied by current or
former Commonwealth
judicial officers under
subclause 28(5), this
clause will also not
apply in relation to
current or former
Commonwealth judicial
officers.
241. 'Constable' is defined
under clause 7 of this
Bill.
Clause 39 - Return of seized things
242. This clause empowers a
Commission to retain any
document or thing seized
under a search warrant if
it is reasonably
necessary for the
Commission's
investigation.
243. Subclause 39(2) requires
a Commission to return
the document or thing as
soon as it is not
reasonably necessary for
the purposes of the
investigation or 60 days
after the item was seized
- whichever is earlier.
244. This allows a Commission
reasonable access to all
available materials to
investigate and consider
the allegations, where it
is not longer than 60
days.
Clause 40 - Compensation for damage to electronic equipment
245. This clause provides for
compensation for damage
caused to electronic
equipment, where it has
been seized and operated
in the course of the
execution of a search
warrant. Clause 29 and
30 allow the operation of
electronic equipment by a
constable or expert in
the execution of a search
warrant.
246. Subclause 40(1) requires
the Commonwealth to pay
reasonable compensation
for damage or corruption
to electronic equipment,
where it has occurred
because of insufficient
care in selecting the
person to operate the
equipment (where expert
assistance is provided
under clause 30) or
insufficient care on the
part of the operator.
Clause 24 enables a
constable to operate
electronic equipment.
247. Subclause 40(2) enables
the Commonwealth and the
owner of the equipment or
user of the data to agree
on an amount for
reasonable compensation.
248. Subclause 40(3) provides
that, if no agreement can
be reached about the
amount, then the owner or
user may institute
proceedings in the
Federal Court of
Australia or another
court of competent
jurisdiction for
determination of this
issue.
249. This mechanism is similar
to other search warrant
schemes, and will be a
separate process to a
Commission's
investigation.
Clause 41 - Powers of Commission in relation to documents or things
250. This clause gives power
to a Commission, member
or a person authorised by
the presiding member to
be able to inspect,
retain or copy documents
or things produced before
or delivered to the
Commission.
251. Similarly to clause 39,
subclause 41(2) provides
that, if a document or
thing retained by the
Commission ceases to be
reasonably necessary for
its investigation, a
Commission must return
the document or thing on
request of a person
entitled to it.
252. This clause allows a
Commission appropriate
access to all available
materials to effectively
investigate and consider
the allegations before
it, and balances this
access with any rights of
an owner/occupier in
respect of seized
documents or things.
253. Subclause 41(3) expressly
provides that subclause
41(2) does not limit the
operation of subclause
39(2). Subclause 39(2)
requires a Commission to
return seized items
within a specified time
no longer than 60 days.
Clause 42 - Disposal of things
254. This clause allows the
presiding member of a
Commission to dispose of
the document or thing in
an appropriate manner,
where a member of staff
of a Commission has taken
all reasonable steps to
return the document or
thing to a person and
that person is either
unable to be located, or
refuses possession.
255. This requires that
appropriate measures are
taken to return property
to its owner and empowers
a Commission to dispose
of the item where an item
cannot be returned.
Clause 43 - Compensation for acquisition of property
256. Subclause 43(1) creates a
liability on the
Commonwealth to pay a
reasonable amount of
compensation where a
Commission has disposed
of a document or thing
under clause 36, and the
disposal of this document
or thing results in an
acquisition of property
from a person otherwise
than on just terms.
257. The Commonwealth and the
owner of the equipment or
user of the data may
agree upon an amount for
reasonable compensation
under subclause 43(2).
If agreement cannot be
reached about the amount
of compensation,
subclause 43(2) provides
that the owner or user
may institute proceedings
in the Federal Court of
Australia or another
court of competent
jurisdiction for
determination of this
issue.
258. 'Acquisition of property'
and 'just terms' are
defined to have the same
meaning as in paragraph
51(xxxi) of the
Constitution.
259. This mechanism will be a
separate process to a
Commission's
investigation.
Clause 44 - Commission may direct that certain information not be published
260. This clause gives
discretion to a
Commission to make
directions that certain
matters are not to be
published. The material
which may be subject to
non-publication
directions are:
. evidence given before a Commission;
. the contents of a document, or a description or a thing, produced
before or delivered to a Commission or seized under a search warrant;
. any information that might enable a person who has given evidence
before a Commission to be identified; or
. the fact that any person has given or may be about to give evidence at
a hearing of a Commission.
261. Subclause 44(2) requires
a Commission to make a
non-publication direction
if not doing so might
prejudice the safety of a
person or the fair trial
of a person who has been
or may be charged with an
offence against an
Australian law. An
Australian law is defined
in clause 7 of this Bill
to include Commonwealth,
State or Territory laws.
262. Clause 23 also enables a
Commission to a direct
that part or all of a
hearing be held in
private, although
hearings will ordinarily
be in public.
263. This clause, together
with clause 23 of this
Bill, allows flexibility
for a Commission to
balance privacy
requirements with other
interests in a
Commission's proceedings.
264. Under subclause 44(3), a
direction of a Commission
will cease to apply where
a record is later made
available for public
access under subsection
31(5) of the
Archives Act 1983, as it
applies because of a
modification prescribed
under subclause 9.6 of
the Schedule to the
Archives (Records of
Parliament) Regulations
1995. These
modifications apply
because clause 82 of this
Bill provides that
records of a Commission
will be
Class A Parliamentary
records.
265. Clause 63 of the Bill
provides that it is an
offence for a person to
publish materials subject
to a non-publication
order. If public access
is provided under
subclause 44(3), this
offence will not apply to
those who provided public
access.
Subdivision D - Costs and expenses of Commonwealth judicial officer and
witnesses
Clause 45 - Costs of legal representation for Commonwealth judicial officer
266. This clause entitles a
Commonwealth judicial
officer who is the
subject of a Commission's
investigation to the
reasonable costs of legal
representation. This is
a liability for the
Commonwealth.
Clause 46 - Reimbursement of expenses of witnesses
267. This clause entitles a
witness who is required
to appear, or is
appearing at a hearing of
a Commission (other than
the Commonwealth judicial
officer who is the
subject of a Commission's
investigation) to be paid
for certain expenses of
their attendance. This
is a liability for the
Commonwealth.
268. Subclause 46(1)(a) and
(b) prescribes that the
amount to which a witness
will be entitled will be
either calculated in
accordance with the
regulations, or, where
there are no regulations
and a Commission has
determined an amount in
writing in relation to a
particular witness, the
amount determined by the
Commission.
269. These costs may include
travel costs for a
witness appearing at a
hearing.
270. Subclause 46(2) excludes
the Commonwealth judicial
officer who is the
subject of a Commission's
investigation from
accessing the entitlement
of reimbursement of
witness expenses. Clause
45 provides for a
separate entitlement to
reasonable costs of legal
representation for the
Commonwealth judicial
officer who is the
subject of a Commission's
investigation.
271. Subclause 46(3) provides
that a determination made
under paragraph 46(1)(b)
is not a legislative
instrument. This
provision is to assist
readers, as the
instrument is not a
legislative instrument
within the meaning of
section 5 of the
Legislative Instruments
Act 2003.
Division 3 - Report
Clause 47 - Guide to this Division
272. This clause inserts a
guide to this Division of
the Bill. The guide will
assist readers to
understand the purpose
and content of the
Division, and to more
easily navigate through
the Division to find
relevant provisions.
This Division relates to
the giving of a
Commission's report for
presentation to the
Parliament.
Clause 48 - Report
273. Subclause 48(1) requires
a Commission to, as soon
as practicable following
completion of an
investigation, give a
report to the
Parliamentary presiding
officers for presentation
to the Parliament. Each
Parliamentary presiding
officer would present the
report in their
respective Houses of
Parliament in accordance
with the rules or orders
of each House.
274. Subclause 48(2) sets out
procedural requirements
in the event that the
Houses of Parliament have
dissolved when the
Commission finalises its
report.
275. Subclause 48(3) sets out
requirements for the
content of a Commission's
report to ensure that all
relevant material is
available for the
Parliament to consider.
The report must:
. describe a Commission's investigation;
. include a full transcript of a Commission's hearings (subject to
subclauses (4) and (5));
. state a Commission's opinion of whether or not there is evidence that
would let the Houses of the Parliament conclude that the alleged
misbehaviour or incapacity investigated by a Commission is proved;
. include a record of all evidence before a Commission as it thinks may
be relevant for the Houses of Parliament to consider in determining
whether the allegation is proved; and
. if the members are not unanimous - state the opinion of each member of
a Commission of whether or not there is evidence that would let the
Houses of the Parliament conclude that the alleged misbehaviour or
incapacity investigated by a Commission is proved.
276. A Commission may also
choose to include further
information in its report
if it considers it
appropriate. This may
include documents or
other things relevant to
the Commission's
investigation.
277. Subclause 48(4) requires
a Commission, if it holds
all or part of a hearing
in private as directed
under clause 23, to
determine whether any or
all evidence given during
that private hearing is
included under clause
48(3)(b) in the full
transcript of a
Commission's proceedings.
278. If evidence is personal
information within the
meaning of the Privacy
Act 1988, a Commission
must, under subclause
48(5), obtain the consent
of the person to whom the
information relates to
include the evidence in
the full transcript.
279. Subclause (6) enables a
Commission to give a
separate report on
sensitive matters to the
Parliamentary presiding
officers in certain
circumstances. A
Commission will have the
power to include material
in a separate report if
it believes that if
findings or conclusions
or any evidence before a
Commission were to be
laid before the Houses of
the Parliament, the
following would apply:
. a person who has been or may be charged with an offence against a
law (whether written or unwritten) of the Commonwealth, a State or
a Territory may not receive a fair trial for the offence;
. an investigation of a breach or possible breach, of a law (whether
written or unwritten) of the Commonwealth, a State or a Territory
may be prejudiced;
. the existence or identity of a confidential source of information
in relation to the enforcement or administration of an Australian
law (whether written or unwritten) of the Commonwealth, a State or
Territory:
i. may be disclosed; or
ii. a person may be enabled to ascertain the existence or
identity of a confidential source of information in relation
to the enforcement or administration of an Australian law;
. there may be prejudice to the safety of a person; or
. those findings or conclusions, or that evidence, would be
scandalous or highly personal.
280. Australian law is defined
in clause 6 of this Bill
to include a
Commonwealth, State or
Territory law.
281. This separate report
would include findings or
conclusions or any
evidence that a
Commission believes
should be included in
such a separate report on
the basis of the above
consideration. The
separate report must be
accompanied by a written
statement of a
Commission's belief.
282. Subclause 48(6) allows
sensitive matters
considered by a
Commission to be
protected in an
appropriate manner, while
enabling a Commission to
provide an informed and
comprehensive report to
the Parliament.
283. Subclause 48(7) applies
where the Parliamentary
presiding officers are
given a separate report
under subclause 48(6).
The presiding officers
must not cause a copy to
be laid before either
House of the Parliament.
The presiding officers
must make it available
for inspection by
Senators, Members of the
House of Representatives
and the person in
relation to whom the
allegation was
investigated, and must
not, subject to section
82, produce or disclose
the report to any other
person.
284. Subclause 48(8) provides
that, except where it is
necessary to do so for
the purposes of giving
effect to this Act, a
person is not to be
required:
. to produce, or disclose, a separate report given under subsection
48(6) to a court or tribunal; or
. to produce, or disclose, a separate report given under subsection
48(6) under any other Australian law.
285. Subclauses 48(6) to (8)
have the combined effect
of retaining appropriate
ongoing protection for
certain findings,
conclusions or
evidentiary matter before
a Commission, in order to
ensure the integrity of a
Commission's
investigation.
Division 4 - Offences relating to proceedings
Clause 49 - Guide to this Division
286. This clause inserts a
guide to this Division of
the Bill. The guide will
assist readers to
understand the purpose
and content of the
Division, and to more
easily navigate through
the Division to find
relevant provisions.
This Division contains
offences relating to a
Commission's
investigation.
287. The offences prescribed
in this Division are in
addition to any relevant
offences in the Crimes
Act 1914.
Clause 50 - Unauthorised presence at hearing
288. This clause establishes
an offence where a person
is present at a hearing
of a Commission in
contravention of
subclause 24(7).
Subclause 24(7) gives a
Commission power to
direct that only certain
persons may attend a
private hearing before a
Commission.
289. The penalty for the
offence is imprisonment
for 6 months. This is
consistent with similar
offences under other
Commonwealth legislation.
Clause 51 - Failure of witness to appear
290. This clause establishes
an offence where a person
has been required by a
notice given under
paragraph 25(1)(a) to
appear at a hearing of a
Commission, and that
person fails to appear as
required by the notice or
attend from day to day.
291. The penalty for the
offence is imprisonment
for 6 months. This is
consistent with similar
offences under other
Commonwealth legislation.
292. Subclause 51(2)
establishes a defence
where a person has a
'reasonable excuse'.
'Reasonable excuse' may
include an emergency
situation or unavoidable
delay.
293. The note to subclause
51(2) confirms that a
person seeking to rely on
a defence of 'reasonable
excuse' will bear the
evidential burden in
proving to a Commission
the existence of an
excuse and that is was
reasonable in the
circumstances. It is
appropriate that the
defendant bears the
evidential burden for
these matters, which are
within the defendant's
knowledge. Reversal of
the onus of proof on the
defendant is consistent
with the application of
subsection 13.3(3) of the
Criminal Code.
294. Subclause 51(3)
establishes a defence to
the application of
subclause 51(1)(b)(ii)
where the person has been
excused or released from
further attendance by a
Commission. Reversal of
the onus of proof on the
defendant is consistent
with the application of
subsection 13.3(3) of the
Criminal Code.
Clause 52 - Failure of a witness to produce document or other thing
295. Subclause 52(1)
establishes an offence
where a person is
required to produce a
document or thing at a
hearing of a Commission
under a notice given
under paragraph 25(1)(a),
and the person appears at
the hearing but fails to
produce the document or
thing as required.
296. The penalty for the
offence is imprisonment
for 6 months. This is
consistent with similar
offences under other
Commonwealth legislation.
297. Subclause 52(2)
establishes an offence
where a person has been
given a notice to produce
a document or other thing
under paragraph 25(1)(c),
and that person refuses,
or fails, to produce a
document or other thing
that the person is
required by the notice to
produce.
298. The penalty for the
offence is imprisonment
for 6 months. This is
consistent with similar
offences under other
Commonwealth legislation.
299. Subclause 52(3)
establishes a defence to
the offence under
subclauses 52(1) and (2)
where a person has a
'reasonable excuse' or if
the document or other
thing was not relevant to
the matter the Commission
was investigating.
'Reasonable excuse' may
include an emergency
situation or unavoidable
delay.
300. Note 1 to subclause 52(3)
confirms that a person
seeking to rely on a
defence of 'reasonable
excuse' will bear the
evidential burden in
proving to a Commission
the existence of an
excuse and that it was
reasonable in the
circumstances. It is
appropriate that the
defendant bears the
evidential burden for
these matters, which are
within the defendant's
knowledge. Reversal of
the onus of proof on the
defendant is consistent
with the application of
subsection 13.3(3) of the
Criminal Code.
301. Note 2 to subclause 52(3)
refers to clause 54,
which provides that a
person will not be
excused from producing a
document or thing
required by notice on the
ground that its
production might tend to
incriminate the person or
expose the person to a
penalty.
Clause 53 - Refusal to be sworn or to give evidence
302. This clause establishes
an offence where a person
who is required to
appear, or is appearing,
before a Commission as a
witness refuses to:
. be sworn or to make an affidavit; or
. refuses to answer a question that is asked at a hearing and is
relevant to a Commission's investigation.
303. The penalty for the
offence is imprisonment
for 6 months. This is
consistent with similar
offences under other
Commonwealth legislation.
304. Subclause 53(2) excludes
current and former
Commonwealth judicial
officers from the
application of the
clause. As current or
former Commonwealth
judicial officers cannot
be required to give
evidence under subclause
25(6), this clause will
also not apply in
relation to current or
former Commonwealth
judicial officers.
305. The note to subclause
53(2) clarifies that a
person seeking to rely on
this provision will bear
the evidential burden in
proving to a Commission
that the person is a
Commonwealth judicial
officer or a former
Commonwealth judicial
officer. It is
appropriate that the
defendant bears the
evidential burden for
these matters, which are
within the defendant's
knowledge. Reversal of
the onus of proof on the
defendant is consistent
with the application of
subsection 13.3(3) of the
Criminal Code.
Clause 54 - Self-incrimination
306. This clause provides that
a person is not excused
from:
. producing a document or thing as required by a notice given under
clause 25; or
. answering a question at a hearing of a Commission that is relevant to
a Commission's investigation;
on the ground that the production of the document or thing, or answer to
the question, might tend to incriminate the person or expose the person to
a penalty.
307. However, subclause 54(2)
provides that, in the
case of an individual,
none of the following:
. the document or thing produced or the answer given;
. producing the document or thing or answering the question;
. any information, document or thing or answering the question;
. any information, document or thing obtained as a direct or indirect
consequence of producing the document or thing or the answering of
the question;
is admissible in evidence against the individual in civil or criminal
proceedings in any court or tribunal of the Commonwealth, a State or a
Territory other than proceedings for:
. an offence against this Act, or Division 3 of Part III of the
Crimes Act 1914;
. an offence against any of the following provisions, being an
offence that relates to this Act or Division 3 of Part III of the
Crimes Act 1914:
o section 6 of the Crimes Act 1914 (accessory after the fact);
o section 11.1 (attempt), 11.4 (incitement) or 11.5 (conspiracy)
of the Criminal Code;
o section 137.1 or 137.2 of the Criminal Code (false or
misleading information or documents); or
o section 149.1 of the Criminal Code (obstruction of
Commonwealth public officials).
308. The Parliament's
consideration under
paragraph 72(ii) of the
Constitution supports
public confidence in the
independence and
impartiality of the
federal judiciary. The
treatment of self-
incrimination is
appropriate to facilitate
the ability of a
Commission to obtain
relevant evidence for the
investigation, so that
they may provide a
comprehensive report and
assist the Parliament in
its consideration of
removal of a judge under
paragraph 72(ii) of the
Constitution.
309. This clause will provide
for use and derivative
use protections where
self-incriminatory
information is provided
to a Commission. These
protections will restrict
the use of self-
incriminatory information
in later court
proceedings or to gather
evidence against a person
who has disclosed self-
incriminatory
information. These
protections are
consistent with the
Attorney-General's
Department Guide to
Framing Commonwealth
Offences.
Clause 55 - Acts or omissions on different days constitute separate
offences
310. This clause provides
that, if any person
commits an offence by
virtue of subclauses 50,
51, 52 or 53, they will
be liable for separate
offences if each of the
same acts or omissions is
repeated on another day.
Clause 56 - False or misleading evidence
311. This clause establishes
an offence where a person
intentionally gives false
or misleading evidence in
a relation to a matter
material to the
Commission's
investigation.
312. The penalty for the
offence is imprisonment
for 2 years. This is
consistent with similar
offences under other
Commonwealth legislation.
Clause 57 - Injury to witness
313. This clause establishes
that it is an offence if
a person uses, causes or
inflicts any violence,
punishment, damage, loss
or disadvantage to
another person for or on
account of that person
having produced a
document or thing under a
notice given under clause
25.
314. The penalty for the
offence is imprisonment
for 12 months. This is
consistent with similar
offences under other
Commonwealth legislation.
Clause 58 - Preventing witnesses from producing document
315. This clause establishes
an offence where one
person prevents another
person (who is required
by notice given under
clause 25 to produce a
document or other thing)
from producing the
document or thing as
required.
316. The penalty for the
offence is imprisonment
for 12 months. This is
consistent with similar
offences under other
Commonwealth legislation.
Clause 59 - Bribery of witness
317. This clause establishes
that it is an offence for
a person to ask for,
receive or obtain any
property or benefit on
the agreement or
understanding that a
document or thing
required to be produced
under clause 25, will not
be produced.
318. Subclause 59(2)
establishes that it is an
offence if a person
attempts, by any means,
to induce another person
who is required to
produce a document or
thing under clause 25 to
not produce the document
or thing.
319. The penalty for the
offence is imprisonment
for 5 years. This is
consistent with similar
offences under other
Commonwealth legislation.
Clause 60 - Fraud on witness
320. Subclause 60(1)
establishes an offence
where a person practices
fraud or deceit on
another person with the
intention that the second
person will not produce a
document or thing as
required under clause 25.
Fault elements under
section 5.6 of the
Criminal Code Act 1995
will apply to this
offence.
321. The penalty for the
offence is imprisonment
for 2 years. This is
consistent with similar
offences under other
Commonwealth legislation.
322. Subclause 60(2)
establishes that it is an
offence if a person makes
or exhibits any
statement,
representation, token, or
writing to another person
with the intention that
the second person will
not produce the document
or thing as required
under clause 25.
323. The penalty for the
offence is imprisonment
for 2 years. This is
consistent with similar
offences under other
Commonwealth legislation.
Clause 61 - Obstruction of a Commission
324. This clause establishes
that it is an offence if
a person:
. insults or disturbs a Commission;
. interrupts the hearings of a Commission;
. uses an insulting language towards a Commission;
. by writing or speech uses words false and defamatory of a
Commission; or
. engages in conduct that is intended, or likely to, amount to an
improper interference with the free exercise by a Commission of its
authority or functions, or the free performance by a member of the
member's duties as a member.
325. Subsection 5.6(1) of the
Criminal Code Act 1995
will apply to an offence
of insulting or
disturbing so that
intention will need to be
proved in relation to
conduct.
326. The penalty for the
offence is imprisonment
for 6 months. This is
consistent with similar
offences under other
Commonwealth legislation.
Clause 62 - Failure to provide facilities and assistance
327. Clause 62 establishes
that it is an offence if
a person is subject to
clause 33, and the person
fails to comply with that
section.
328. Clause 33 requires the
occupier of premises to
provide all reasonable
facilities and assistance
for the effective
execution of the search
warrant by the constable.
329. The penalty for the
offence is 30 penalty
units. This is
consistent with similar
offences under other
Commonwealth legislation.
Section 4AA of the
Crimes Act 1914 defines
'penalty unit' to mean
$110.
Clause 63 - Unauthorised publication of material
330. This clause establishes
that it is an offence
where a person publishes
material which is subject
to a direction under
subclause 44(1), unless
that direction has ceased
in operation pursuant to
subclause 44(3).
331. The penalty for the
offence is imprisonment
for 6 months. This is
consistent with similar
offences under other
Commonwealth legislation.
332. Subclause 44(1) of this
Bill gives a Commission
discretion to direct that
materials relating to a
Commission's inquiry not
be published. Subclause
44(3) provides that a
direction of a Commission
will cease to apply where
a record is later made
available for public
access under subsection
31(5) of the Archives Act
1983, which applies
because of modifications
prescribed by subclause
9.6 of the Schedule to
the
Archives (Records of Parli
ament) Regulations 1995.
333. The effect of this clause
is to enable enforcement
of non-publication
directions made by a
Commission.
334. An offence under clause
63 has effect in relation
to the availability of
protections against
defamation action for a
Commission under the
Parliamentary Privileges
Act 1987. Subclause
67(3) of the Bill deems
that clause 63 applies in
the same manner as
section 13 of the
Parliamentary Privileges
Act 1987 for the purposes
of applying subsection
10(1) of the
Parliamentary Privileges
Act 1987 to a Commission.
Section 10 of the
Parliamentary Privileges
Act 1987 provides a
defence to an action for
defamation in relation to
reports of proceedings at
a meeting of a House or a
committee except where
matter has been published
in contravention of
section 13. Where a
person has committed an
offence under clause 63,
protection in relation to
defamation action will
not apply.
Division 5 - Protection
Clause 64 - Guide to this Division
335. This clause inserts a
guide to this Division of
the Bill. The guide will
assist readers to
understand the purpose
and content of the
Division, and to more
easily navigate through
the Division to find
relevant provisions. The
Division relates to
protections provided to
those connected with a
Commission.
Clause 65 - Protection of members, witnesses and lawyers
336. This clause gives those
connected with a
Commission the same
protections and
immunities as equivalents
connected with a
committee of a House of
the Parliament. This
enables the same
protection of members of,
and witnesses and lawyers
appearing before, a
Commission as a committee
of the Parliament. This
would include relevant
protections afforded in
relation to a committee
of the Parliament under
the
Parliamentary Privileges A
ct 1987. This is
consistent with a
Commission's role as a
Parliamentary body.
337. Subclause 65(1) gives a
member of a Commission,
in the performance of
their functions or
exercise of powers, the
same protection and
immunity that a member of
a House of Parliament has
performing functions or
exercising powers as part
of a committee of a House
of Parliament.
338. Subclause 65(2) gives a
person who is required to
appear before a
Commission or produce a
document or other thing
under a notice given
under clause 25, or is
appearing as a witness
before a Commission the
same protection as a
witness appearing before
a committee of a House of
Parliament, subject to
other provisions in the
Act. Clause 66 gives
additional protections
for those who are
required to appear or
produce documents or
things at a Commission's
hearing.
339. Subclause 65(3) gives
Counsel assisting a
Commission or a lawyer
representing a person at
a hearing, the same
protection and immunity
as a witness before a
committee of a House of
Parliament. A Commission
may appoint a lawyer to
assist the Commission as
counsel under clause 78.
Clause 66 - Protection in relation to contravention of prohibitions
340. This clause provides
specific protections for
a person appearing or
producing documents or
things from liability for
contravention of
prohibitions under any
other Australian law in
doing so. 'Australian
law' is defined in clause
6 of this Bill to include
laws of the Commonwealth,
a State or a Territory.
341. Subclause 66(1) protects
a person who is required
to appear, or is
appearing, before a
Commission and answer
questions at a hearing.
In these circumstances,
the person will not be
liable for a
contravention of a
prohibition by or under
another Australian law on
the answer. This will
provide protection where
a person provides an
answer before a
Commission containing
information that is
precluded from being
disclosed under another
law (for example, section
70 of the Crimes Act
1914). It will not apply
where a person gives
evidence about a previous
criminal offence (clause
54 would be relevant in
these circumstances).
342. Subclause 66(2) protects
a person who is required
to produce, or who
produces, to a Commission
a document, or other
thing. In these
circumstances, the person
will not be liable for a
contravention of a
prohibition by or under
another Australian law on
production of the
document or thing. This
will provide protection
where a person produces a
document to a Commission
that is precluded from
being disclosed under
another law (for example,
section 70 of the Crimes
Act 1914). It will not
apply where a person
gives evidence about a
previous criminal offence
(clause 54 would be
relevant in these
circumstances).
Clause 67 - Hearings and evidence of a Commission
343. 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
and this Bill will be
taken to be an Act
establishing a committee
for the purposes of
section 10 and
subsections 16(3), (4)
and (6) of the
Parliamentary Privileges
Act 1987. This includes
the formulation, making
or publication of a
report. This has the
effect of applying those
provisions of the
Parliamentary Privileges
Act 1987 to a Commission.
344. As a Commission has its
own legal status, these
provisions are necessary
to apply important
aspects of the
Parliamentary Privileges
Act 1987 to a Commission.
345. Application of
subsections 16(3), (4)
and (6) of the
Parliamentary Privileges A
ct 1987 will prevent the
questioning or impeaching
of proceedings of a
Commission in proceedings
of a Commission.
346. Application of subsection
16(6) of the
Parliamentary Privileges
Act 1987 will ensure that
evidence of proceedings
of a Commission can be
used in a prosecution of
offences under the bill
relating to a
Commission's
investigation.
347. Section 10 of the
Parliamentary Privileges
Act 1987 provides a
defence to an action for
defamation in relation to
reports of proceedings at
a meeting of a House or a
committee except where
matter has been published
in contravention of
section 13.
348. Subclause 67(2) of this
Bill deems that clause 63
applies in the same
manner as section 13 of
the Parliamentary
Privileges Act 1987 for
the purposes of applying
subsection 10(2) of the
Parliamentary Privileges
Act 1987 to a Commission.
This will have the
effect that, where a
person has committed an
offence under clause 63
of this Bill, protection
in relation to defamation
action will not apply.
Part 4 - Terms and conditions of membership
Clause 68 - Guide to this Part
349. This clause inserts a
guide to this Part of the
Bill. The guide will
assist readers to
understand the purpose
and content of the Part,
and to more easily
navigate through the Part
to find relevant
provisions. This Part
sets out terms and
conditions of a member,
including remuneration,
and rules relating to
resignation, termination
or cessation of
appointment.
Clause 69 - Terms and conditions generally
350. This clause enables the
Parliamentary presiding
officers to jointly
determine terms and
conditions (if any) of
members that are not
covered in this Bill. A
determination would be in
writing. Parliamentary
presiding officer is
defined in clause 7 of
this Bill to mean the
Speaker of the House of
Representatives or the
President of the Senate.
Clause 70 - Other employment
351. Clause 70 prevents a
member of a Commission
from engaging in any paid
employment that
conflicts, or may
conflict, with the proper
performance of their
duties. This clause is
included to support the
impartiality and
independence of members
of a Commission during an
investigation.
Clause 71 - Remuneration
352. This clause outlines the
remuneration of members
of a Commission.
353. Subclause 71(1) enables
remuneration of a member
to be determined by the
Remuneration Tribunal.
Subclause 71(1) outlines
a position where no such
determination is in
operation and provides
for a member to be paid
remuneration that is
prescribed by the
regulations.
354. Subclause 71(2) enables
allowances to be paid to
members as prescribed by
regulations.
355. Such remuneration of a
member is appropriate
where subclause 70(1)
prevents a member of a
Commission from engaging
in any paid employment
that conflicts, or may
conflict, with the proper
performance of their
duties.
Clause 72 - Resignation
356. This clause outlines the
procedure for a member to
resign from their
appointment as a member
of a Commission.
357. Under subclause 72(1) a
member of a Commission
may resign by giving a
written resignation to a
Parliamentary presiding
officer for presentation
to the Parliament.
Resignations may be given
to either the Speaker of
the House of
Representatives or the
President of the Senate.
358. Subclause 72(2) specifies
that the resignation take
effects on the day that
it is received by the
Parliamentary presiding
officer unless a later
day is specified in the
resignation.
359. Subclause 72(3) requires
the Parliamentary
presiding officer who
receives a written
resignation to give a
copy of it to the other
Parliamentary presiding
officer as soon as
practicable.
360. This clause gives
certainty for the status
of a resignation while
providing consultation
between the Parliamentary
presiding officers
appropriate in the
context of a Commission
as joint Parliamentary
body.
Clause 73 - Termination, or cessation, of appointment
361. This clause outlines the
process for termination
or cessation of a
member's appointment to a
Commission.
362. Under subclause 73(1) a
member's appointment may
be terminated on any of
the following grounds:
. the member's misbehaviour or physical or mental incapacity;
. the member becomes bankrupt; applies to take the benefit of any law
for the relief of bankrupt or insolvent debtors; compounds with his or
her creditors; or makes an assignment of his or her remuneration for
the benefit of his or her creditors;
. the member engages in paid employment that conflicts or may conflict
with the proper performance of his or her duties (see clause 70 of
this Bill); or
. the member fails, without reasonable excuse, to disclosure certain
interests as required under clause 74 of this Bill.
363. Under subclause 73(1) a
member's appointment
would be terminated by
force of this subclause
if:
. each House of the Parliament passes, in the same session, a resolution
on a ground referred to in subclause 73(1); and
. the ground on which the member's appointment is to be terminated is
the same in each resolution of the Houses of the Parliament.
364. The process for
termination of a member
is consistent with the
process for appointment
of a member (see clause
14).
365. Under subclause 73(1),
misbehaviour and
incapacity have their
ordinary meanings, rather
than their meanings in
paragraph 72(ii) of the
Constitution, because of
the different context in
which they apply to
termination of members of
a Commission (see also
definitions of
'misbehaviour' or
'incapacity' in clause 7
of this Bill).
366. Under subclause 73(5), if
a member becomes a
Commonwealth or State
judicial officer, they
will cease to be a member
of a Commission.
'Commonwealth or State
judicial officer' is
defined in section 7.
Clause 74 - Disclosure of interests by members
367. This clause requires a
member of a Commission to
disclose any interest,
pecuniary or otherwise,
that could conflict with
the proper performance of
his or her duties in
relation to the
Commission's
investigation and report.
This may be an existing
interest or an interest
which a member acquires
during a Commission's
investigation.
368. Paragraph 74(a) requires
the disclosure of
interest by a member of a
Commission to be to all
persons and bodies
recognised by the
Commission as parties to
the investigation.
369. Paragraph 74(b) prevents
a member who has
disclosed interests from
taking part in the
investigation or
preparation of the report
except with the written
consent of all those
persons and bodies under
paragraph 74(a).
370. This clause is designed
to enhance the
independence and
impartiality of the
Commission's
investigations and report
to the Parliament.
Part 5 - Administrative provisions
Clause 75 - Guide to this Part
371. This clause inserts a
guide to this Part of the
Bill. The guide will
assist readers to
understand the purpose
and content of the Part,
and to more easily
navigate through the Part
to find relevant
provisions. The Part
provides for staff,
consultants and counsel
to assist a Commission,
disclosure of information
of a Commission and rules
relating to records of a
Commission.
Clause 76 - Staff of a Commission
372. This clause provides for
the staffing of a
Commission, so it can be
appropriately supported.
373. Subclause 76(1) outlines
the meaning of persons
who will be staff for the
purposes of a Commission.
Staff will be persons
made available to a
Commission by a
Parliamentary presiding
officer; or persons whose
services to a Commission
will be made available
under an arrangement for
the engagement of
Australian Public Service
(APS) employees under
subclause (2).
374. A Parliamentary presiding
officer is defined in
clause 6 of the Bill to
mean the Speaker of the
House of Representatives
or the President of the
Senate.
375. Subclause 76(2) enables
the Parliamentary
presiding officers to
make arrangements with an
agency head (under the
Public Service Act 1999)
for the services of staff
to be made available to a
Commission.
376. Subclause 76(3) confirms
the employment and
accountability frameworks
which apply to an APS
employee who is
performing services for a
Commission under an
arrangement with agency
heads. An employee will
be taken to be engaged
under the Parliamentary
Service Act 1999, and on
leave without pay from
their employment under
the Public Service Act
1999. This is similar to
ordinary transfer
arrangements between
Parliamentary service and
public service
employment.
377. Subclause 76(3)(b)
requires an APS employee
working for a Commission
perform his or her
functions and duties in
accordance with the
directions of the
presiding member.
378. Subclause 76(4) clarifies
that any direction of the
presiding member of a
Commission will be
subject to the direction
of the Secretary of the
Department that provides
administrative support
under clause 79, in
relation to the
performance of the
Secretary's functions and
the exercise of the
Secretaries powers under
the
Financial Management and A
ccountability Act 1997
and the Parliamentary
Service Act 1999. This
provides for a direction
to staff by the presiding
member of a Commission to
be overridden by a
direction given by the
Secretary of the
Department that provides
administrative support
under clause 79, in
circumstances where a
conflict arises.
379. This is consistent with
the governance model for
a Commission (see clause
79 of this Bill).
Clause 77 - Consultants
380. A Commission may, acting
on behalf of the
Commonwealth, engage
consultants to assist in
the performance of the
Commission's functions.
381. A consultant may be
engaged to assist the
Commission in particular
areas of expertise,
including in the analysis
of evidentiary material.
Clause 78 - Counsel assisting a Commission
382. A Commission may, acting
on behalf of the
Commonwealth, appoint a
lawyer to assist the
Commission as counsel,
either generally or in
relation to a particular
matter or matters.
383. The role of counsel
assisting a Commission
would be flexible,
similar to the role of
counsel assisting a Royal
Commission.
384. A general appointment of
counsel to assist a
Commission could be for
duration of the
Commission's
investigation. The
clause also enables
counsel to be appointed
to assist the Commission
in relation to a
particular matter.
Clause 79 - Commission to be part of Department of House of Representatives
or Senate
385. This clause clarifies the
status of a Commission
for the purposes of the
Financial Management and
Accountability Act 1997
and the Parliamentary
Service Act 1999. A
Commission, where
established, will be
taken to be part of the
Department of the House
of Representatives or the
Department of the Senate,
established by the
Parliamentary Service Act
1999, as agreed by the
Parliamentary presiding
officers.
386. This would be agreed on
establishment of a
Commission between the
Speaker of the House of
Representatives and the
President of the Senate.
Parliamentary presiding
officer is defined in
clause 7 of this Bill to
mean the Speaker of the
House of Representatives
or the President of the
Senate.
387. Agreement between the
Parliamentary presiding
officers will make clear
which Parliamentary
Department has
responsibility for a
Commission for the
purposes of the
Parliamentary Service Act
1999 and the Financial
Management and
Accountability Act 1997.
388. This clause is designed
to provide a clear
governance structure for
a Commission and
appropriate framework for
the financial management
and accountability of a
Commission.
Clause 80 - Commission must prepare and keep statements of reasons about
search warrants
389. Clause 80 requires a
Commission to prepare and
keep statements of
reasons about each search
warrant issued by a
Commission or a member of
a Commission. A
Commission has the power
to issue search warrants
under clause 28 of this
Bill.
390. Subclause 80(2) requires
that the statement of
reasons set out
particular factors
considered in the
Commission's decision to
exercise power to issue a
search warrant. These
reasons must include:
. the reasons a Commission or member suspects that each document or
thing to which the search warrant relates is connected with the
matter a Commission is investigating;
. the reasons a Commission or member suspects that each document or
thing may be on or in particular premises;
. the reasons a Commission or member believes that, if a notice were
issued requiring production for each document or thing, it may be
concealed, lost, mutilated or destroyed.
391. This clause is designed
to operate as a safeguard
and promote transparency
and accountability in the
process of issuing a
search warrant (see also
clause 28 of this Bill).
Clause 81 - Commission may give information, evidence, documents etc
392. This clause enables a
Commission to give
certain information,
evidence, documents or
things obtained in the
course of its
investigation to certain
authorities. Subclause
81(1) provides that the
clause applies subject to
subclause 81(6)) to
information, evidence, a
document or other thing
obtained by a Commission
in the course of its
investigation.
393. Subclause 81(2) enables a
Commission to give
evidence which may relate
to a contravention of a
law of a Commonwealth,
State or Territory that
is punishable by a
criminal, civil or
administrative penalty
(under subclause 81(3))
to certain authorities
provided in subparagraphs
81(2)(a) to (e).
Whether a Commission
gives the information or
evidence to one or more
of these people or
authorities is
discretionary.
394. Subclause 81(4) enables a
Commission to give
information to a Royal
Commission within the
meaning of the Royal
Commissions Act 1902 or a
Royal Commission of a
State or Territory. A
Commission may provide
material in circumstances
where it may relate to a
Royal Commission's
subject of inquiry.
Whether a Commission
gives the information or
evidence to a Royal
Commission is
discretionary.
395. Subclause 81(5) enables a
Commission to give
information to Chief
Executive Officer of the
Australian Crime
Commission if a
Commission is satisfied
that information,
evidence, documents or
things may be relevant to
the performance of the
functions of the
Australian Crime
Commission. Whether a
Commission gives the
information or evidence
to the Australian Crime
Commission is
discretionary.
396. Subclause 81(6) clarifies
that clause 81 is not
intended to limit or
otherwise affect the
operation of section 16
of the Parliamentary
Privileges Act 1987. In
giving information under
this clause, a Commission
will need to consider the
use and derivative use
immunity afforded to self-
incriminatory evidence
under clause 54 of this
Bill which applies in all
Australian proceedings.
Under clause 54, self
incriminatory disclosures
made by a person to a
Commission cannot be used
against a person in later
court proceedings, and
cannot be used indirectly
to gather evidence
against the person.
Clause 82 - Records of a Commission
397. This clause establishes a
process for the handling
of records of a
Commission.
398. Subclause 82(1) requires
a Commission to give
possession of all records
that are no longer
required for the
Commission's functions to
either House of
Parliament. The House
which receives the
possession of the records
will then retain
responsibility for a
Commission's records.
399. Subclause 82(1A) provides
that where a Commission
gives records to a House
of Parliament under
clause 82(1) and the
parliamentary presiding
officers have been given
a separate report they no
longer need, the
presiding officers must
give the separate report
to the same House.
400. Subclause 82(2) deems any
record of a Commission
provided to a House of
Parliament under
subclauses 82(1) or
82(1A) to be a Class A
record for the purposes
of the Archives Act 1983
and any regulations made
under, or for the
purposes of, that Act.
The Bill gives all
relevant records of the
Commission the same
protection as a Class A
Parliamentary document.
The Parliamentary
presiding officers have
responsibilities and
powers in relation to
Class A Parliamentary
records under the
Archives Act 1983 and the
Archives (Records of Parli
ament) Regulations 1995.
401. Under subclause 44(3) of
this Bill, restrictions
on public access of
certain records of a
Commission under
subclause 44(1) would
cease where a record is
made available for public
access under the Archives
Act 1983 regime.
Part 6 - Miscellaneous
Clause 83 - Regulations
402. This clause enables the
Governor-General to make
regulations prescribing
matters required or
permitted by the Bill to
be prescribed or
necessary or convenient
to be prescribed for
carrying out or giving
effect to this Bill.
403. Matters which can be
prescribed under the Bill
include matters under
clauses 25, 46, and 71.
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