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2005 The Parliament of the Commonwealth of Australia HOUSE OF REPRESENTATIVES Presented and read a first time Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill 2005 (Mr Kerr) A Bill for an Act to establish the Parliamentary (Judicial Misbehaviour or Incapacity) CommissionContents Part 1--Preliminary 1 1 Short title ..................................................................................... 1 2 Commencement ............................................................................ 1 3 Objects of Act............................................................................... 2 4 Schedule(s)................................................................................... 2 5 This Act binds the Crown ............................................................. 2 6 Definitions.................................................................................... 2 7 Administration.............................................................................. 3 Part 2--Establishment of the Commission 3 8 Establishment ............................................................................... 3 9 Members ...................................................................................... 3 10 Vacancy in membership ................................................................ 4 Part 3--Administrative provisions 5 11 Remuneration of members ............................................................ 5 12 Staff of the Commission................................................................ 5 13 Counsel assisting the Commission ................................................ 6 14 Legal and financial assistance to justice ........................................ 6 15 Reimbursement of expenses of witnesses ...................................... 6 16 Records of the Commission........................................................... 6 Part 4--Functions and reports of the Commission 6 17 Functions...................................................................................... 6 18 Decision of questions.................................................................... 7 19 Reports ......................................................................................... 7 Part 5--Powers and proceedings of the Commission 8 20 Conduct of proceedings................................................................. 8 21 Power to summon witnesses and take evidence ............................. 9 22 Search warrants ............................................................................ 9 23 Previous inquiries ........................................................................11 24 Hearings......................................................................................11 25 Arrest of witness failing to appear................................................13 26 Powers of Commission in relation to documents and other things ..........................................................................................13 27 Standard of proof, admissibility of evidence and natural justice..........................................................................................14 28 Statements made by witness not admissible in evidence against the witness.......................................................................15 29 Protection of members, &c...........................................................15 Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill 2005 i
Part 4--Offences 16 30 Application of the Criminal Code ................................................16 31 Unauthorised presence at hearing or publication of evidence ........16 32 Failure of witnesses to attend or produce documents ....................16 33 Penalty for refusing to be sworn or to give evidence .....................17 34 Acts or omissions on different days to constitute separate offences .......................................................................................18 35 Self-incrimination........................................................................18 36 Excuse of other legislation ...........................................................18 37 False or misleading evidence .......................................................19 38 Destroying documents or other things...........................................19 39 Injury to witness ..........................................................................20 40 Dismissal by employers of witness...............................................21 41 Preventing witnesses from attending or producing document ........21 42 Bribery of witness........................................................................22 43 Fraud on witness..........................................................................23 44 Commission may communicate information .................................23 45 Contempt of Commission.............................................................24 Part 5--Miscellaneous 25 46 Regulations..................................................................................25 Schedule 1--Amendments to the Parliamentary Privileges Act 1987 26 ii Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill 2005
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 A Bill for an Act to establish the Parliamentary 22 (Judicial Misbehaviour or Incapacity) Commission 23 24 25 The Parliament of Australia enacts: 26 Part 1--Preliminary 27 1 Short title 28 This Act may be cited as the Parliamentary (Judicial Misbehaviour 29 or Incapacity) Commission Act 2005. 30 2 Commencement 31 (1) Sections 1, 2, 3, 4, and Schedule 1 commence on the day on which 32 this Act receives the Royal Assent. Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill 2005 1
1 (2) The remaining provisions of this Act commence on the day on 2 which an Act which appropriates money for the remuneration and 3 allowances of members and any other expenses occasioned by the 4 operation of this Act receives the Royal Assent. 5 3 Objects of Act 6 The objects of this Act are to: 7 (a) establish the Parliamentary (Judicial Misbehaviour or 8 Incapacity) Commission; and 9 (b) amend section 16 of the Parliamentary Privileges Act 1987. 10 4 Schedule(s) 11 Each Act that is specified in a Schedule to this Act is amended or 12 repealed as set out in the applicable items in the Schedule 13 concerned, and any other item in a Schedule to this Act has effect 14 according to its terms. 15 5 This Act binds the Crown 16 This Act binds the Crown in each of its capacities. 17 6 Definitions 18 (1) In this Act, unless the contrary intention appears: 19 Commission means the Parliamentary (Judicial Misbehaviour or 20 Incapacity) Commission appointed in accordance with section 8; 21 document includes any book, register or other record of 22 information, however compiled, recorded or stored; 23 incapacity has the same meaning as the word `incapacity' in section 24 72 of the Constitution; 25 judge means a judge of a court created by the Parliament or of the 26 Supreme Court of a State or Territory; 27 justice of a federal court means a Judge of the High Court or a 28 judge or magistrate of a court created by the Parliament; 2 Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill 2005
1 legal practitioner means a barrister, a solicitor, a barrister and 2 solicitor, or a legal practitioner, of the High Court or of the 3 Supreme Court of a State or Territory; 4 member means a member of the Commission; 5 misbehaviour has the same meaning as the word `misbehaviour' in 6 section 72 of the Constitution: and, subject to that provision, is not 7 restricted to conduct which would constitute a criminal offence; 8 Presiding Member means the member of the Commission holding 9 an appointment under subsection 9(4) or subsection 10(3); 10 reasonable excuse in relation to any act or omission by a witness or 11 a person summoned as a witness before the Commission means, 12 unless declared otherwise by this Act, an excuse which would 13 excuse an act or omission of a similar nature by a witness or a 14 person summoned as a witness before a court of law; 15 special circumstances scheme includes any arrangement for 16 payment of financial assistance for legal costs and related expenses 17 by the Commonwealth in special circumstances in cases not covered 18 by extant statutory and non-statutory schemes. 19 7 Administration 20 The Attorney-General has the general administration of this Act. 21 Part 2--Establishment of the Commission 22 8 Establishment 23 (1) The Parliamentary (Judicial Misbehaviour or Incapacity) 24 Commission is established by this section. 25 9 Members 26 (1) The Commission consists of three members; two of whom shall be 27 appointed jointly by the President of the Senate and the Speaker of 28 the House of Representatives on the recommendation of the Prime 29 Minister, and one who shall be appointed jointly by the President of Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill 2005 3
1 the Senate and the Speaker of the House of Representatives on the 2 recommendation of the Leader of the Opposition. 3 (2) At least one member of the Commission shall be a retired judge of 4 the High Court or of a court created by the Parliament, or a judge or 5 retired judge of a Supreme Court of a State or Territory. 6 (3) A person shall not be appointed as a member if the person is a 7 justice of a federal court. 8 (4) The Speaker and President shall appoint jointly one of the members 9 to be the Presiding Member. 10 10 Vacancy in membership 11 (1) If a member dies, becomes physically or mentally incapable of 12 performing the functions of a member or, by notice in writing to the 13 President of the Senate and the Speaker of the House of 14 Representatives, resigns his or her appointment, the remaining 15 members shall constitute the Commission until a replacement 16 member is appointed, and this Act shall have effect as if subsection 17 9(1) required the appointment of 2 members. 18 (2) Whenever a vacancy in membership of the Commission occurs the 19 Speaker and the President of the Senate, as soon as practicable, 20 shall jointly appoint a replacement member. The requirements of 21 subsections 9(1), 9(2) and 9(3) shall apply when appointments are 22 made to fill any vacancy. 23 (3) If the Presiding Member dies, becomes physically or mentally 24 incapable of performing the functions of a member or, by notice in 25 writing to the President of the Senate and the Speaker of the House 26 of Representatives, resigns his or her appointment, another member 27 shall be appointed jointly by the President of the Senate and the 28 Speaker of the House of Representatives to be the Presiding 29 Member. 4 Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill 2005
1 Part 3--Administrative provisions 2 11 Remuneration of members 3 (1) A member of the Commission shall be entitled to an honorarium 4 while a member. 5 (2) A member of the Commission shall be entitled to a daily payment 6 while the Commission is considering a matter. For the purpose of 7 this subsection the Commission shall be deemed to be considering a 8 matter from the day it first meets after receiving a referral from a 9 House of the Parliament until the day it submits its report on the 10 matter. 11 (3) Payments to members in accordance with subsections (1) and (2) 12 shall be as determined by the Remuneration Tribunal but, if no 13 determination of that remuneration is in operation, the member shall 14 be paid such remuneration as is prescribed. 15 (4) A member shall be paid such allowances as are prescribed. 16 (5) This section has effect subject to the Remuneration Tribunals Act 17 1973. 18 12 Staff of the Commission 19 (1) Subject to subsection (2), the staff of the Commission shall be 20 persons made available to the Commission by the President of the 21 Senate and the Speaker of the House of Representatives. 22 (2) The President of the Senate and the Speaker of the House of 23 Representatives may arrange with the Secretary of a Department of 24 the Australian Public Service for the services of officers or 25 employees in the Department to be made available to the 26 Commission. 27 (3) While a person is performing services for the Commission pursuant 28 to an arrangement under this section, that person shall perform his 29 or her functions and duties in accordance with the directions of the 30 Presiding Member and not otherwise. Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill 2005 5
1 13 Counsel assisting the Commission 2 The Commission may appoint a legal practitioner to assist the 3 Commission as counsel, either generally or in relation to a particular 4 matter or matters. 5 14 Legal and financial assistance to justice 6 (1) A justice of a federal court who is the subject of inquiry by the 7 Commission is entitled to make an application to the Attorney- 8 General, under the special circumstances scheme, for the provision 9 of assistance under this section in respect of the costs of his or her 10 representation by a legal practitioner in relation to the inquiry. 11 (2) The Attorney-General shall comply with an application under 12 subsection (1). 13 15 Reimbursement of expenses of witnesses 14 A witness appearing before the Commission shall be paid by the 15 Commonwealth in respect of the expenses of the attendance of the 16 witness an amount authorised in accordance with the prescribed 17 scale or, if there is no prescribed scale, such amount as the 18 Commission determines. 19 16 Records of the Commission 20 The Parliament is entitled to the possession of records kept by the 21 Commission that are no longer required for the purposes of the 22 Commission, and all such records shall be deemed to be records of 23 the Parliament for the purposes of the Archives Act 1983. 24 Part 4--Functions and reports of the Commission 25 17 Functions 26 (1) The Commission shall, in accordance with this section, inquire, and 27 advise the Parliament, when a matter relating to a federal justice has 28 been referred to it by a House of the Parliament, whether, in its 29 opinion, facts amounting to proved misbehaviour or incapacity 6 Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill 2005
1 exist, as would warrant the removal of the justice from office by 2 means of the provisions of section 72 of the Constitution. 3 (2) In carrying out its inquiry the Commission shall consider and give 4 advice about only specific allegations made in precise terms 5 contained in the matter referred by a House. 6 18 Decision of questions 7 (1) Questions arising before the Commission shall be decided in 8 accordance with the opinion of a majority of the members. 9 (2) Where the members are not unanimous in opinion on a question 10 arising before the Commission, the particulars of the opinions of 11 each of the members on that question shall be recorded. 12 19 Reports 13 (1) When a matter has been referred to the Commission, and the 14 Commission has inquired into the matter, the Commission shall 15 report its findings on the matter to the Parliament as soon as 16 practical. The report shall be delivered to the Speaker of the House 17 of Representatives and to the President of the Senate. 18 (2) If the Commission concludes a report following the dissolution of 19 one or both Houses, it shall deliver the report to the Speaker and 20 President as soon as practical after the first sitting day of the House 21 of Representatives of the following Parliament. 22 (3) The report shall be comprehensive and shall annexe a full transcript 23 of the Commission's proceedings. The report shall state the 24 Commission's advice to the Parliament required by section 17. The 25 opinions of all Commissioners, including any dissenting opinion, 26 shall be included in the report. 27 (4) Subject to subsection (6), the President of the Senate and the 28 Speaker of the House of Representatives shall, as soon as 29 practicable after they receive the report of the Commission and the 30 record of evidence, cause copies of the report and record to be laid 31 before the Senate and the House of Representatives. Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill 2005 7
1 (5) If the Commission is of the opinion that, if any of its findings or 2 conclusions, or any of the evidence given before the Commission 3 were to be laid before the Houses of the Parliament: 4 (a) a person who has been or may be charged with an offence 5 may not receive a fair trial for the offence; 6 (b) the conduct of an investigation of a breach or possible breach, 7 of the law, may be prejudiced; 8 (c) the existence or identity of a confidential source of 9 information in relation to the enforcement or administration of 10 the law may be disclosed or a person enabled to ascertain the 11 existence or identity of that source; or 12 (d) there may be prejudice to the safety of a person; 13 the Commission may include those findings or conclusions, or that 14 evidence, in a separate report and deliver the report to the President 15 of the Senate and the Speaker of the House of Representatives, 16 together with a statement of its opinion. 17 (6) Where a separate report is prepared in accordance with subsection 18 (5), the President of the Senate and the Speaker of the House of 19 Representatives shall cause that separate report to be made 20 available for inspection by Members of the Parliament and by the 21 justice who is the subject of the inquiry by the Commission; but the 22 matters referred to in the report must not be otherwise published 23 except as may be specifically authorised by the resolution of a 24 House. 25 Part 5--Powers and proceedings of the 26 Commission 27 20 Conduct of proceedings 28 (1) The Commission shall, unless it thinks the circumstances require 29 otherwise, conduct the whole of its inquiry in public, but the 30 Commission may, when in its opinion the interests of justice require, 31 direct that part or all of its proceedings be conducted in private. 32 (2) The Commission shall conduct its inquiry as quickly as a proper 33 consideration of the matters before the Commission will permit. 8 Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill 2005
1 21 Power to summon witnesses and take evidence 2 (1) A member of the Commission may summon a person to appear 3 before the Commission at a hearing to do either or both of the 4 following: 5 (a) to give evidence; 6 (b) to produce the documents, or other things, specified in the 7 summons. 8 (2) The Presiding Member may require a person appearing at the 9 hearing to produce a document or other thing. 10 (3) The Commission may, at a hearing, take evidence on oath or 11 affirmation and for that purpose: 12 (a) a member of the Commission may require a person appearing 13 at the hearing to give evidence either to take an oath or to 14 make an affirmation in a form approved by the member of the 15 Commission presiding at the hearing; and 16 (b) a member of the Commission, or a person who is an 17 authorized person in relation to the Commission, may 18 administer an oath or affirmation to a person so appearing at 19 the hearing. 20 (4) A member of the Commission may, by written notice served (as 21 prescribed) on a person, require the person to produce a document 22 or thing specified in the notice to a person, and at the time and 23 place, specified in the notice. 24 (5) In this section, a reference to a person who is an authorized person 25 in relation to the Commission is a reference to a person authorized 26 in writing, or a person included in a class of persons authorized in 27 writing, for the purposes of this section by the Presiding Member. 28 (6) No person, including a justice of a federal court the subject of 29 inquiry under section 17, has the right to give evidence to the 30 Commission by way of an unsworn statement. 31 22 Search warrants 32 (1) Where: Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill 2005 9
1 (a) the Commission has reasonable grounds for suspecting that 2 there may be, at that time or within the next following 24 3 hours, upon any land or upon or in any premises, vessel, 4 aircraft or vehicle, a thing or things of a particular kind 5 connected with the matter into which the Commission is 6 inquiring (in this section referred to as "things of the relevant 7 kind"); and 8 (b) the Commission believes on reasonable grounds that, if a 9 summons were not issued for the production of the thing or 10 things, a thing or things might be concealed, lost, mutilated or 11 destroyed, the Commission may issue a search warrant. 12 (2) A reference in subsection (1) to the Commission includes a 13 reference to a member authorised by the Commission to act under 14 that subsection. 15 (3) A search warrant issued under subsection (1) shall authorise a 16 member of the Australian Federal Police or of the Police Force of a 17 State or of the Northern Territory or any other person, named in the 18 warrant, with such assistance as that member or person thinks 19 necessary and if necessary by force: 20 (a) to enter upon the land or upon or into the premises, vessel, 21 aircraft or vehicle; 22 (b) to search the land, premises, vessel, aircraft or vehicle for 23 things of the relevant kind; and 24 (c) to seize any things of the relevant kind found upon the land or 25 upon or in the premises, vessel, aircraft or vehicle and deliver 26 things so seized to the Commission. 27 (4) There shall be stated in a warrant issued under this section: 28 (a) a statement of the purpose for which the warrant is issued, 29 which shall include a reference to the matter into which the 30 Commission is inquiring and with which the things of the 31 relevant kind are connected; 32 (b) whether entry is authorized to be made at any time of the day 33 or night or during specified hours of the day or night; 34 (c) a description of the kind of things authorized to be seized; and 35 (d) a date, not being later than one month after the date of issue of 36 the warrant, upon which the warrant ceases to have effect. 10 Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill 2005
1 (5) If, in the course of searching, in accordance with a warrant issued 2 under this section, for things of a particular kind connected with a 3 matter into which the Commission is inquiring, the person executing 4 the warrant finds: 5 (a) any thing of another kind that he or she believes on reasonable 6 grounds to be connected with that matter; or 7 (b) any thing that he or she believes on reasonable grounds to be 8 connected with another matter into which the relevant 9 Commission is inquiring; 10 and he or she believes on reasonable grounds that it is necessary to 11 seize that thing in order to prevent its concealment, loss, mutilation 12 or destruction, the warrant shall be deemed to authorize the person 13 to seize that thing. 14 (6) In this section, thing includes a document. 15 23 Previous inquiries 16 In considering any allegation, the Commission shall have regard to 17 the outcome of any previous official inquiry into that allegation, and 18 consider it to the extent that the Commission believes it necessary or 19 desirable to do so, and shall not be precluded by any other law or by 20 any privileges of either House of the Parliament from obtaining 21 access to the records of evidence given at, or findings made as a 22 result of, such an inquiry. 23 24 Hearings 24 (1) For the purposes of its inquiry the Commission may hold hearings. 25 (2) Hearings before the Commission may be held at such places within 26 Australia as the Commission determines. 27 (3) The Presiding Member shall preside at a hearing before the 28 Commission. 29 (4) At a hearing before the Commission, a justice of a federal court who 30 is the subject of inquiry by the Commission is entitled to appear, 31 and to be represented by a legal practitioner, at any time during the 32 hearing. Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill 2005 11
1 (5) Subject to subsection (4), in relation to such of the proceedings 2 before the Commission as may be conducted in private, the 3 Commission may give directions as to the persons who may be 4 present and whether such a person may be represented by a legal 5 practitioner. 6 (6) Nothing in this Act prevents the presence, when evidence is being 7 taken at a hearing, of a person representing the person giving 8 evidence or representing a person who, by reason of a direction 9 given by the Commission under subsection (5), is entitled to be 10 present. 11 (7) Where the Commission conducts some part of a hearing in private, 12 a person (other than a member, counsel assisting the Commission or 13 a member of the staff of the Commission approved by the 14 Commission) shall not be present at that hearing unless the person is 15 entitled to be present by virtue of a direction under subsection (5) or 16 by virtue of subsection (6). 17 (8) At a hearing before the Commission: 18 (a) counsel assisting the Commission; 19 (b) any person authorised by the Commission or entitled to appear 20 before it at the hearing; or 21 (c) any legal practitioner authorised by the Commission to appear 22 before it for the purpose of representing a person at the 23 hearing pursuant to subsection (4), may, so far as the 24 Commission thinks appropriate, examine or cross-examine 25 any witness on any matter that the Commission considers 26 relevant to its inquiry. 27 (9) Subject to this Act, the procedure at a hearing before the 28 Commission shall be such as the Commission directs. 29 (10) The Commission may give directions that: 30 (a) evidence given before the Commission; 31 (b) the contents of a document, or a description of a thing, 32 produced to the Commission or seized pursuant to a warrant 33 issued under section 22; 34 (c) any information that might enable a person who has given 35 evidence before the Commission to be identified; or 12 Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill 2005
1 (d) the fact that any person has given or may be about to give 2 evidence at a hearing; 3 shall not be published, and the Commission shall give such a 4 direction if not to do so might prejudice the safety of a person or 5 prejudice the fair trial of a person who has been or may be charged 6 with an offence. 7 25 Arrest of witness failing to appear 8 (1) If any person served with a summons to attend the Commission as a 9 witness fails to attend the Commission in answer to the summons, 10 the Presiding Member may, on proof by statutory declaration of the 11 service of the summons, issue a warrant for the person's 12 apprehension. 13 (2) The warrant shall authorize the apprehension of the witness and the 14 witness being brought before the Commission, and the witness' 15 detention in custody for that purpose until he or she is released by 16 order of the Presiding Member. 17 (3) The warrant may be executed by any member of the Australian 18 Federal Police or of the Police Force of a State or of the Northern 19 Territory, or by any person to whom it is addressed, and the person 20 executing it shall have power to break and enter any place building 21 or vessel for the purpose of executing it. 22 (4) The apprehension of any witness under this section shall not relieve 23 him or her from any liability incurred by the witness by reason of 24 his or her non-compliance with the summons. 25 26 Powers of Commission in relation to documents and other things 26 (1) The Commission, a member or a person who is an authorised 27 person in relation to the Commission may: 28 (a) inspect any documents or other things produced before, or 29 delivered to, the Commission; 30 (b) retain the documents or other things for so long as is 31 reasonably necessary for the purposes of the Commission's 32 inquiry; and Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill 2005 13
1 (c) in the case of documents produced before, or delivered to, the 2 Commission, make copies of matter contained in the 3 documents, being matter that is relevant to the Commission's 4 inquiry. 5 (2) Where the retention of a document or other thing by the 6 Commission ceases to be reasonably necessary for the purposes of 7 the Commission's inquiry, the Commission shall, if a person who 8 appears to the Commission to be entitled to the document or other 9 thing so requests, cause the document or other thing to be delivered 10 to that person. 11 (3) In subsection (1), a reference to a person who is an authorised 12 person in relation to the Commission is a reference to a person 13 authorised in writing, for the purposes of that subsection, by the 14 Presiding Member. 15 27 Standard of proof, admissibility of evidence and natural justice 16 (1) Except as otherwise provided by this Act, in any proceeding the 17 Commission is to find that the facts necessary for deciding any 18 question arising under this Act have been proved if it is satisfied 19 that they have been proved on the balance of probabilities. 20 (2) In determining whether it is so satisfied, the matters that the 21 Commission shall take into account include: 22 (a) the importance of the evidence in the proceeding; and 23 (b) the gravity of the matters alleged in relation to the question. 24 Note: This provision means that, while the criminal standard of proof shall 25 not apply, the more serious the allegation being considered is, the 26 higher must be the standard of proof. 27 (3) The Commission is not bound by rules of evidence and may be 28 informed on any matter in issue in any manner that it considers 29 appropriate. 30 (4) The Commission shall act in accordance with the rules of natural 31 justice. 14 Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill 2005
1 28 Statements made by witness not admissible in evidence against 2 the witness 3 (1) The following are not admissible in evidence against a natural 4 person in any civil or criminal proceedings in any court of the 5 Commonwealth, of a State or of a Territory: 6 (a) a statement or disclosure made by the person in the course of 7 giving evidence before a Commission; 8 (b) the production of a document or other thing by the person 9 pursuant to a summons, requirement or notice under 10 section 21. 11 (2) Subsection (1) does not apply to the admissibility of evidence in 12 proceedings for an offence against this Act. 13 29 Protection of members, &c. 14 (1) A member has, in the performance of the functions or the exercise 15 of the powers of a member, the same protection and immunity that a 16 Member of Parliament has in relation to the performance of the 17 functions or the exercise of the powers of a committee of the 18 Parliament. 19 (2) Subject to this Act, a person summoned to attend or appearing 20 before the Commission as a witness has the same protection as a 21 witness before a committee of the Parliament. 22 (3) A legal practitioner assisting the Commission or representing a 23 person at a hearing before the Commission has the same protection 24 and immunity as a legal practitioner has when performing the same 25 function in relation to a committee of the Parliament. 26 (4) Proceedings of the Commission shall be considered to be 27 proceedings in Parliament, and evidence before the Commission 28 considered to be evidence before a committee of the Parliament, for 29 the purposes of subsections 16(3), 16(3A) and 16(4) of the 30 Parliamentary Privileges Act 1987, as amended by this Act. Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill 2005 15
1 Part 4--Offences 2 30 Application of the Criminal Code 3 Chapter 2 of the Criminal Code applies to all offences against this 4 Act. 5 Note: Chapter 2 of the Criminal Code sets out the general principles of 6 criminal responsibility. 7 31 Unauthorised presence at hearing or publication of evidence 8 A person who: 9 (a) is present at a hearing in contravention of subsection 24(7); or 10 (b) makes a publication in contravention of subsection 24(10) or 11 subsection 19(6); 12 is guilty of an offence punishable, on summary conviction, by a fine 13 not exceeding $100,000 or imprisonment for a period not exceeding 14 6 months. 15 32 Failure of witnesses to attend or produce documents 16 (1) A person served, as prescribed, with a summons to appear as a 17 witness at a hearing before the Commission shall not: 18 (a) fail to attend as required by the summons; or 19 (b) fail to attend from day to day unless excused, or released from 20 further attendance, by a member of the Commission. 21 Penalty: $100,000 or imprisonment for 6 months. 22 (1A) Subsection (1) is an offence of strict liability. 23 Note: For strict liability, see section 6.1 of the Criminal Code. 24 (1B) Subsection (1) does not apply if the person has a reasonable excuse. 16 Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill 2005
1 (2) A person appearing as a witness at a hearing before the Commission 2 shall not fail to produce a document or other thing that the person 3 was required to produce by a summons under this Act served on 4 him or her as prescribed or that the person was required to produce 5 by the member of the Commission presiding at the hearing. 6 Penalty: $100,000 or imprisonment for 6 months. 7 (2A) Subsection (2) is an offence of strict liability. 8 (2B) Subsection (2) does not apply if the person has a reasonable excuse. 9 (3) It is a defence to a prosecution for an offence against subsection (2) 10 constituted by a failure to produce a document or other thing to a 11 Commission if the document or other thing was not relevant to the 12 matters into which the Commission was inquiring. 13 Note: A defendant bears an evidential burden in relation to the matters in 14 subsections (1B), (2B) and (3) (see subsection 13.3(3) of the 15 Criminal Code). 16 (4) A person served with a notice under subsection 21(4) must not 17 refuse or fail to produce a document or other thing that the person 18 was required to produce in accordance with the notice. 19 Penalty: $100,000 or imprisonment for 6 months. 20 (5) Subsection (4) does not apply if the person has a reasonable excuse. 21 (6) It is a defence to a prosecution for an offence against subsection (4) 22 constituted by a refusal or failure to produce a document or other 23 thing if the document or other thing was not relevant to the matters 24 into which the Commission was inquiring. 25 Note: A defendant bears an evidential burden in relation to the matters in 26 subsections (5) and (6) (see subsection 13.3(3) of the Criminal 27 Code). 28 33 Penalty for refusing to be sworn or to give evidence 29 (1) If any person appearing as a witness before the Commission refuses 30 to be sworn or to make an affirmation or to answer any question 31 relevant to the inquiry put to him or her by any member, the person 32 shall be guilty of an offence. Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill 2005 17
1 (2) The penalty for an offence under subsection (1) is a fine not 2 exceeding $100,000 or imprisonment for a period not exceeding 3 6 months. 4 (3) Subsection (1) is an offence of strict liability. 5 Note: For strict liability, see section 6.1 of the Criminal Code. 6 34 Acts or omissions on different days to constitute separate offences 7 Where any person has on any day done or omitted to do something, 8 and the person's act or omission amounts to an offence against 9 section 31, 32 or 33, and does or omits to do the same thing at any 10 meeting of the Commission held on some other day, each such act or 11 omission shall be a separate offence. 12 35 Self-incrimination 13 (1) It is not a reasonable excuse for the purposes of section 32 for a 14 person to refuse or fail to produce a document or other thing that the 15 person was required to produce at a hearing before the Commission 16 that the production of the document or other thing might tend to 17 incriminate the person or make the person liable to a penalty. 18 (2) A person is not entitled to refuse or fail to answer a question that the 19 person is required to answer by the Presiding Member on the ground 20 that the answer to the question might tend to incriminate the person 21 or make the person liable to a penalty. 22 36 Excuse of other legislation 23 (1) It is not a reasonable excuse for the purposes of section 32 for a 24 person to refuse or fail to produce a document or other thing that the 25 person was required to produce at a hearing before the Commission 26 that the answering of the question or the production of the document 27 or thing is prohibited by or under any Act. 28 (2) A person is not entitled to refuse or fail to answer a question that the 29 person is required to answer by the Presiding Member on the ground 30 that the answer to the question is prohibited by or under any Act. 18 Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill 2005
1 (3) The answering of a question or the production of a document or 2 thing, when required by the Commission, does not constitute a 3 breach of a provision made by or under any Act prohibiting the 4 disclosure of information of a kind contained in that answer, 5 document or thing. 6 37 False or misleading evidence 7 (1) A person shall not, at a hearing before the Commission, give 8 evidence that is to the knowledge of the person false or misleading 9 with respect to any matter, being a matter that is material to the 10 inquiry being made by the Commission. 11 (2) A contravention of subsection (1) is an indictable offence and, 12 subject to this section, is punishable by a fine not exceeding 13 $500,000 or by imprisonment for a period not exceeding 5 years. 14 (3) Notwithstanding that an offence against subsection (1) is an 15 indictable offence, a court of summary jurisdiction may hear and 16 determine proceedings in respect of such an offence if the court is 17 satisfied that it is proper to do so and the defendant and prosecutor 18 consent. 19 (4) Where, in accordance with subsection (3), a court of summary 20 jurisdiction convicts a person of an offence against subsection (1), 21 the penalty that the court may impose is a fine not exceeding 22 $200,000 or imprisonment for a period not exceeding 1 year. 23 38 Destroying documents or other things 24 (1) A person commits an offence if: 25 (a) the person acts or omits to act; and 26 (b) the act or omission results in a document or other thing being: 27 (i) concealed, mutilated or destroyed; or 28 (ii) rendered incapable of identification; or 29 (iii) in the case of a document, rendered illegible or 30 indecipherable; and 31 (c) the person knows, or is reckless as to whether, the document 32 or thing is one that: Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill 2005 19
1 (i) is or may be required in evidence before the Commission; 2 or 3 (ii) a person has been, or is likely to be, required to produce 4 pursuant to a summons, requirement or notice under 5 section 21. 6 (2) An offence under subsection (1) is an indictable offence and, subject 7 to this section, is punishable on conviction by imprisonment for a 8 period not exceeding 2 years or by a fine not exceeding $200,000. 9 (3) Notwithstanding that an offence under subsection (1) is an 10 indictable offence, a court of summary jurisdiction may hear and 11 determine proceedings in respect of such an offence if the court is 12 satisfied that it is proper to do so and the defendant and the 13 prosecutor consent. 14 (4) Where, in accordance with subsection (3), a court of summary 15 jurisdiction convicts a person of an offence under subsection (1), the 16 penalty that the court may impose is a fine not exceeding $100,000 17 or imprisonment for a period not exceeding 12 months. 18 39 Injury to witness 19 (1) Any person who uses, causes or inflicts, any violence, punishment, 20 damage, loss, or disadvantage to any person for or on account of: 21 (a) the person having appeared as a witness before the 22 Commission; or 23 (b) any evidence given by him or her before the Commission; or 24 (c) the person having produced a document or thing pursuant to a 25 summons, requirement or notice under section 21; 26 is guilty of an indictable offence. 27 Penalty: $100,000, or imprisonment for 1 year. 28 (2) Nothing in this section applies to, or in relation to, anything done by 29 a person under, or for the purposes of, section 72 of the 30 Constitution. 20 Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill 2005
1 40 Dismissal by employers of witness 2 (1) Any employer who dismisses any employee from his or her 3 employment, or prejudices any employee in his or her employment, 4 for or on account of the employee having: 5 (a) appeared as a witness before the Commission; or 6 (b) given evidence before the Commission; or 7 (c) produced a document or thing pursuant to a summons, 8 requirement or notice under section 21; 9 is guilty of an indictable offence. 10 Penalty: $100,000, or imprisonment for 1 year. 11 (2) Subsection (1) does not apply if the employee was dismissed or 12 prejudiced in his or her employment for some reason other than the 13 reasons mentioned in subsection (1). 14 (3) Nothing in this section applies to, or in relation to, anything done by 15 a person under, or for the purposes of, section 72 of the 16 Constitution. 17 Note: A defendant bears an evidential burden in relation to the matters in 18 subsection (2) (see subsection 13.3(3) of the Criminal Code). 19 41 Preventing witnesses from attending or producing document 20 (1) Any person who intentionally prevents any person who has been 21 summoned to attend as a witness before the Commission from 22 attending as a witness or from producing anything in evidence 23 pursuant to the summons to attend shall be guilty of an indictable 24 offence. 25 Penalty: Imprisonment for one year. 26 (2) Any person who intentionally prevents any person who is required 27 to produce a document or other thing pursuant to a notice under 28 subsection 21(4) from producing that document or thing in 29 accordance with the notice is guilty of an indictable offence. 30 Penalty: Imprisonment for 1 year. Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill 2005 21
1 42 Bribery of witness 2 A person who: 3 (a) gives, confers, or procures, or promises or offers to give or 4 confer, or to procure or attempt to procure, any property or 5 benefit of any kind to, upon, or for, any person, upon any 6 agreement or understanding that any person called or to be 7 called as a witness before the Commission shall give false 8 testimony or withhold true testimony; or 9 (b) attempts by any means to induce a person called or to be 10 called as a witness before the Commission to give false 11 testimony, or to withhold true testimony; or 12 (c) asks, receives or obtains, or agrees to receive or obtain any 13 property or benefit of any kind for himself, or any other 14 person, upon any agreement or understanding that any person 15 shall as a witness before the Commission give false testimony 16 or withhold true testimony; 17 shall be guilty of an indictable offence. 18 Penalty: Imprisonment for five years. 19 (2) Any person who: 20 (a) gives, confers, or procures, or promises or offers to give or 21 confer, or to procure or attempt to procure, any property or 22 benefit of any kind to, upon, or for, any person, upon any 23 agreement or understanding that any person who is required to 24 produce a document or other thing pursuant to a summons, 25 requirement or notice under section 21 will not comply with 26 the requirement; or 27 (b) attempts by any means to induce any person who is required 28 to produce a document or other thing pursuant to a summons, 29 requirement or notice under section 21 not to comply with the 30 requirement; or 31 (c) asks, receives or obtains, or agrees to receive or obtain any 32 property or benefit of any kind for himself, or any other 33 person, upon any agreement or understanding that any person 34 who is required to produce a document or other thing pursuant 35 to a summons, requirement or notice under section 21 will not 36 comply with the requirement; 22 Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill 2005
1 is guilty of an indictable offence. 2 Penalty: Imprisonment for 5 years. 3 43 Fraud on witness 4 (1) Any person who practises any fraud or deceit, or intentionally 5 makes or exhibits any statement, representation, token, or writing, 6 knowing it to be false, to any person called or to be called as a 7 witness before the Commission with intent to affect the testimony of 8 that person as a witness, shall be guilty of an indictable offence. 9 Penalty: Imprisonment for 2 years. 10 (2) Any person who practises any fraud or deceit, or intentionally 11 makes or exhibits any statement, representation, token, or writing, 12 knowing it to be false, to any person with intent that any person who 13 is required to produce a document or other thing pursuant to a 14 summons, requirement or notice under section 21 will not comply 15 with the requirement, is guilty of an indictable offence. 16 Penalty: Imprisonment for 2 years. 17 44 Commission may communicate information 18 (1) Where, in the course of inquiring into a matter, the Commission 19 obtains information that relates, or that may relate, to a 20 contravention of a law, or evidence of a contravention of a law, of 21 the Commonwealth, of a State or of a Territory, the Commission 22 may, if in the opinion of the Commission it is appropriate so to do, 23 communicate the information or furnish the evidence, as the case 24 may be, to: 25 (a) the Attorney-General of the Commonwealth, of a State, of the 26 Australian Capital Territory or of the Northern Territory; or 27 (aa) the Director of Public Prosecutions; or 28 (c) a Special Prosecutor appointed under the Special Prosecutors 29 Act 1982; or 30 (d) the Commissioner of the Australian Federal Police or of the 31 Police Force of a State or of the Northern Territory; or Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill 2005 23
1 (e) the authority or person responsible for the administration or 2 enforcement of that law. 3 (1A) A reference in subsection (1) to a contravention of a law is a 4 reference to a contravention for which a person may be liable to: 5 (a) a criminal penalty; or 6 (b) a civil or administrative penalty. 7 (2) Where, in the course of inquiring into a matter, the Commission: 8 (a) obtains information; 9 (b) takes evidence; or 10 (c) receives a document or thing; 11 that, in the opinion of the Commission, relates or may relate to a 12 matter into which a Royal Commission is required or authorized to 13 inquire, the Commission may, if in its opinion it is appropriate so to 14 do, communicate the information or furnish the evidence, document 15 or thing, as the case may be, to the Royal Commission. 16 (2A) Where, in the course of inquiry into a matter, the Commission: 17 (a) obtains information; 18 (b) takes evidence; or 19 (c) receives a document or thing; 20 that, in the opinion of the Commission, relates or may relate to the 21 performance of the functions of the Australian Crime Commission, 22 the Commission may, if in its opinion it is appropriate so to do, 23 communicate the information or furnish the evidence, document or 24 thing, as the case may be, to the Chief Executive Officer of the 25 Australian Crime Commission. 26 (3) A reference in subsection (2) or (2A) to the furnishing of a 27 document or thing includes a reference to the furnishing of the 28 contents of the document or a description of the thing. 29 45 Contempt of Commission 30 Any person who intentionally insults or disturbs the Commission, or 31 interrupts the proceedings of the Commission, or uses any insulting 32 language towards the Commission, or by writing or speech uses 33 words false and defamatory of the Commission, or is in any manner 24 Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill 2005
1 guilty of any intentional contempt of the Commission, shall be 2 guilty of an offence. 3 Penalty: $ 10,000 or imprisonment for three months. 4 Part 5--Miscellaneous 5 46 Regulations 6 The Governor-General may make regulations, not inconsistent with 7 this Act, prescribing matters: 8 (a) required or permitted by this Act to be prescribed; or 9 (b) necessary or convenient to be prescribed for carrying out or 10 giving effect to this Act. Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill 2005 25
Amendments to the Parliamentary Privileges Act 1987 Schedule 1 1 Schedule 1--Amendments to the 2 Parliamentary Privileges Act 1987 3 4 1 Subsection 16(3) 5 Omit: 6 "In", substitute 7 "Subject to this section, in" 8 2 After Subsection 16(3) 9 Insert: 10 "(3A) If: 11 (a) a person (the `witness') gives evidence against another person 12 in a court or tribunal; and 13 (b) the witness had previously made a statement in evidence 14 before a House or a committee; and 15 (c) that statement is not consistent with the evidence given by the 16 witness in the court or tribunal; the other person may test the 17 credibility of the witness by questioning the witness with 18 regard to that statement.". 26 Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill 2005