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PARLIAMENTARY (JUDICIAL MISBEHAVIOUR OR INCAPACITY) COMMISSION BILL 2005
OUTLINE
Purpose / Object of the Bill
The purpose of the Bill is to establish an independent Commission to hear
and determine matters concerning judicial misbehaviour or incapacity and
report its findings and make recommendations to Parliament.
Rationale for the Bill
The Bill is necessary to establish an independent Commission to assist the
Parliament in the exercise of its powers to remove a federal judicial
officer in circumstances of proved misbehaviour or incapacity pursuant to
section 72 of the Constitution. The Commission established by the Bill will
provide a mechanism for the independent and impartial hearing of complaints
against federal judicial officers and reduce the potential for damaging and
unfounded attacks on the federal judiciary.
Précis of principal provisions
The principal provisions of the Bill establish the Parliamentary (Judicial
Misbehaviour or Incapacity) Commission. The Commission is responsible for
hearing matters referred to it concerning alleged judicial misbehaviour or
incapacity and is required to report its findings and make recommendations
to the Parliament.
The Bill contains administrative provisions relating to staffing and
remuneration of members of the Commission, witness expenses, record
keeping, legal and financial assistance to the federal judicial officer,
and for counsel assisting the Commission.
The Bill details the powers of the Commission to conduct an inquiry when a
matter is referred to it involving an allegation of misbehaviour or
incapacity in relation to a federal judicial officer. It further details
its function to report its findings and provide advice to the Parliament as
to whether in its opinion facts amounting to proved misbehaviour or
incapacity exist as would warrant the removal of the judicial officer from
office under s72 of the Constitution.
The powers and proceedings of the Commission are detailed in the Bill
including how hearings in the Commission are to be conducted. The
Commission is given power to summon witnesses and take evidence, and issue
search warrants and warrants for witnesses who fail to appear. It may also
consider previous official inquiries and has the power to obtain evidential
materials contained in documents and other materials.
The Bill provides that statements of witnesses and documents produced by
witnesses appearing before the Commission will be inadmissible in
subsequent court proceedings.
Under the Bill, members of the Commission are afforded the protection and
immunities of a Member of Parliament. Witnesses to the Commission have the
same protections as witnesses appearing before a Parliamentary committee.
The Bill requires that a matter determined by the Commission be proven to
the civil standard of proof, namely on the balance of probabilities. It
must be shown on the evidence that it was more probable than not that the
allegation against the judicial officer is true.
The Bill creates a number of offences relating to the Commission's
proceedings and provides that Chapter 2 of the Criminal Code will apply to
these offences. Offences under the Bill include unauthorised presence at a
hearing or publication of evidence, the failure of witnesses to attend or
produce documents, refusing to be sworn or give evidence, providing false
or misleading evidence, destroying documents and other things, causing
injury to witnesses, dismissing an employee for their involvement at the
Commission, preventing witnesses from attending the Commission or producing
a document, bribery of a witness, fraud on a witness and contempt of the
Commission.
The Bill provides that acts or omissions that occur on different days will
constitute separate offences, and the Commission reserves the right to
communicate information which it considers to be a breach of the law to the
Commonwealth Attorney-General or the Attorney-General of a State or
Territory. The Bill provides that the Commission will not accept the excuse
of other legislation as being prohibitive to the production of documents or
giving evidence.
The Bill empowers the Governor-General to make regulations as necessary to
the requirements of the act.
Policy background
The case of Justice Lionel Murphy in the early 1980s highlighted the need
for a clear and consistent method for dealing with alleged misconduct by
federal judicial officers. Parliament's ability to deal with claims of
judicial misconduct has remained unchanged since the Murphy case.
The federal judiciary has expanded significantly in recent years, and now
includes a large number of federal judicial officers spanning the High
Court, Federal Court, Federal Magistrates Court and Family Court. As a
consequence, there is an increased potential that the Parliament may be
called on to exercise its constitutional power under section 72 to remove a
federal judicial officer for misconduct or incapacity.
There is no constitutional or legislative method for dealing with
allegations against federal judicial officers. There is no guidance as to
how Parliament is to determine whether alleged misconduct is proven and
thereby warrants the removal of a federal judicial officer. The
Commission's functions will provide transparency and impartiality to the
process of the determination of claim of misconduct or incapacity against a
federal judicial officer.
The absence of a formal process for the determination of the substance of
allegations against a judicial officer has the potential to undermine
public confidence in the judiciary and cause damage to the reputation of
the judicial officer. The Commission process will establish a consistent,
rule-based method to determine the truth of allegations by an evidence-
based process which is transparent, consistent and accountable.
It is timely that an independent and impartial body be established which
can investigate and hear matters concerning alleged judicial misconduct and
report its findings to the Parliament and make recommendations to
Parliament as to whether the removal of a federal judicial officer is
warranted.
The role of the Commission is not to make a determination as to whether a
federal judicial officer should be removed from office for reason of
misconduct or incapacity. The removal of such a judicial officer remains
the exclusive responsibility of the Parliament carrying out its duties in
accordance with section 72 of the Constitution.
The purpose of the Commission is to provide an independent and impartial
body to scrutinise allegations against federal judicial officers and report
its findings to the Parliament. The Commission will be available to
convene expediently and proceed by way of a formal hearing by taking sworn
evidence from witnesses and determining whether the evidence shows that
misbehaviour or behaviour amounting to incapacity can be proved on the
balance of probabilities.
The findings of the Commission will be reported back to Parliament which
will then decide, in accordance with the power invested in it by section 72
of the Constitution, whether a federal judicial officer should be removed
from office.
Financial impact statement
The financial impact of this bill will be the establishment and running
costs of the commission.
NOTES ON CLAUSES
Part 1 - Preliminary
Clause 1: Short title
Clause 1 is a formal provision that specifies the short title of the
Bill.
Clause 2: Commencement
Clause 2.1 specifies that select sections of the Act will commence when
the Act receives royal assent.
Clause 2.2 provides that the remaining sections of the Act will come into
effect at such time as another Act, which allows for remuneration of
members of the Commission and other expenses associated with setting up
and maintaining the Parliamentary (Judicial Misbehaviour or Incapacity)
Commission, comes into effect.
Clause 3: Objects of the Act
Clause 3 outlines the object of the Act, namely to establish an
independent Commission called the Parliamentary (Judicial Misbehaviour or
Incapacity) Commission.
Clause 4: This Act binds the Crown
Clause 4 provides that the Act binds the Crown but does not make the
Crown liable to be prosecuted for an offence.
Clause 5: Definitions
Clause 5 defines the terms used in the Act:
"Commission" is defined to refer to the Parliamentary (Judicial
Misbehaviour or Incapacity) Commission which is to be established by
section 8 of the Act.
"Document" is defined to include any book, register or record of
information held in any form as a record or that has been stored.
"Incapacity" for the purposes of the Act is defined as having the same
meaning as applies to Section 72 of the Constitution.
"Judge" is defined to refer to a judge of a court that has been
established by the Parliament or of the Supreme Court of a State or
Territory.
"Justice of a Federal Court" is defined in the Act to refer to a Judge
of the High Court or a Judge or Magistrate of a court created by the
Parliament that exercises federal jurisdiction.
"Legal practitioner" is defined in the Act to mean a barrister, a
solicitor or, in states where there is a fused profession and one
person may act as both to include those practitioners, who are
admitted to either or both the High Court and the Supreme Court of
their State or Territory.
"Member" is defined by the Act to refer to a member of the Commission.
Section 9 of the Act details who may be a member of the Commission.
"Misbehaviour" is defined as having the same meaning as applies to
Section 72 of the Constitution. The definition encompasses a wide view
of the term and specifies that misbehaviour is not limited to conduct
that constitutes a criminal offence.
"Presiding Member" refers to the member of the Commission who has been
appointed to hold office under subsection 9(4) or 10(3) of the Act,
that is, the person who has been jointly appointed by the Speaker and
the President to be the Presiding Member.
"Reasonable Excuse" is defined in the context of acts or omissions by
witnesses before the Commission. A 'reasonable excuse' under the Act
is one which would excuse an act or omission of a similar nature by a
witness before a court.
"Special Circumstances Scheme" includes any arrangement for payment of
legal costs and related expenses in situations where funding is not
covered by statutes or other schemes.
Clause 6: Administration
Clause 6 provides that the Attorney-General is responsible for
administering the Act.
Part 2 - Establishment of the Commission
Clause 7: Establishment
Clause 7.1 establishes the Parliamentary (Judicial Misbehaviour or
Incapacity) Commission.
Clause 8: Members
Clause 8.1 details the appointment procedure for members of the
Commission. The Commission will be comprised of three members, two of
which will be appointed jointly. The first is to be appointed as agreed
by the President of the Senate and the Speaker of the House of
Representatives who will act on the recommendation of the Prime Minister.
The second is to be appointed in the same way, except that the Speaker of
the House of Representatives and the President of the Senate will act on
the recommendation of the Leader of the Opposition. The provision to
allow both the Prime Minister and the Leader of the Opposition to make
recommendations as to appointments overcomes any perceived bias in
appointments and ensures that the Commission will be constituted by
members who represent the Parliament at the time of appointment.
Clause 8.2 requires one of the members appointed to the Commission to
be a retired Judge of a Court of superior jurisdiction as specified in
the Act. This ensures that the Commission includes a person with
experience in courts and tribunals and the procedures encompassed in such
hearings such as taking and assessing evidence. The inclusion of a member
of the Judiciary will give the Commission the benefit of the experience
of that person in a role which the Commission is charged with overseeing.
Clause 8.3 prohibits a Justice of a Court exercising federal
jurisdiction to be a sitting member of the Commission. This provision
prevents the situation where a federal judicial officer must preside
over a matter concerning the conduct of a peer or colleague. By excluding
Judges/Justices and Magistrates who exercise a federal jurisdiction from
being a member of the Commission, the Commission is better situated to
operate fairly and avoid allegations of both positive and negative bias.
Clause 8.4 provides for the Speaker and the President to nominate and
appoint the Presiding Member of the Commission. This is to ensure that
the Commission is representative of the Parliament of the day.
Clause 9: Vacancy in membership
Clause 9.1 details the procedures to be followed when a member of the
Commission becomes unable to fulfil his or her duties by reason of
illness, resignation or death. The Commission is to continue its work as
a two member commission until such time as a third member is appointed.
This prevents any significant disruption to the work of the Commission in
the event that a member becomes unavailable to serve.
Clause 9.2 provides that a replacement member shall be chosen jointly by
the Speaker and the President of the Senate and in accordance with the
same requirements for appointing an ordinary member. This is to ensure
the continuity of membership and appointments to the Commission.
Clause 9.3 provides that if a Presiding Member of the Commission becomes
unable to fulfil their duties either by illness, resignation or death,
the Speaker and the President of the Senate shall jointly appoint a
replacement Presiding Member.
Part 3 - Administrative provisions
Clause 10: Remuneration of members
Clause 10.1 makes provision for the payment of an honorarium to members
of the Commission in recognition of their service.
Clause 10.2 allows for a payment to be paid on a daily basis to a member
when the Commission is considering a matter. The Commission is deemed to
be considering a matter from its first meeting after being referred a
case until it submits its report to Parliament. The payment takes into
account the extra work required of members during this period.
Clause 10.3 provides that the Remuneration Tribunal will determine the
payments to be made to members.
Clause 10.4 provides that members are entitled to prescribed allowances.
Clause 10.5 provides that the payments authorised by this clause are
subject to the provisions in the Remuneration Tribunals Act 1973.
Clause 11: Staff of the Commission
Clause 11.1 recognises that staff will be required to assist the
Commission in its work. The President of the Senate and the Speaker of
the House of Representatives are responsible for making the necessary
staffing arrangements.
Clause 11.2 allows the President of the Senate and the Speaker of the
House of Representatives to make the necessary arrangements for the
employment of staff with the Secretary of the Department of the
Australian Public Service.
Clause 11.3 provides that a staff member who works under such arrangement
for the Commission performs their duties exclusively at the direction of
the Presiding Member.
Clause 12: Counsel assisting the Commission
Clause 12 authorises the Commission to appoint a legal practitioner to
act as counsel to the Commission to assist it to perform to its
functions.
Clause 13: Legal and financial assistance to Justice
Clause 13.1 allows the federal judicial officer subject to the
Commission's inquiry to make an application to the Attorney-General for
financial assistance under the special circumstances scheme in relation
to the costs of their legal representation at the inquiry.
Clause 13.2 requires the Attorney-General to comply with an application
made by a judicial officer under the special circumstances scheme.
Clause 14: Reimbursement of expenses of witnesses
Clause 14 provides that witnesses be reimbursed for the expenses of their
attendance at such amounts determined by the prescribed scale or set by
the Commission. This reflects the practices of courts of law where
witnesses are compensated for their out-of-pocket expenses for attending
court.
Clause 15: Records of the Commission
Clause 15 provides that Parliament is entitled to keep the records
produced by the Commission and that these will be considered records of
the Parliament for the purposes of the Archives Act 1983. A Parliamentary
record enables the Parliament to be able to review the procedures of the
Commission if necessary when it comes to determine whether a judicial
officer is to be removed from office.
Part 4 - Functions and reports of the Commission
Clause 16: Functions
Clause 16.1 specifies that one of the primary functions of the Commission
is to report its findings to Parliament particularly when the facts are
found to amount to proven misbehaviour or incapacity. The report of the
Commission is designed to assist the Parliament in its determination of
whether a judicial officer be removed from office in the exercise of its
constitutional powers under section 72. The Commission's findings are to
be given significant weight by the Parliament by virtue of the fact that
it is an independent and impartial body charged with the responsibility
of conducting an impartial hearing of claims made against the judicial
officer and assessing the credibility of the evidence against him or her.
Clause 16.2 limits the scope of the matters into which the Commission can
inquire to the terms of reference provided to it by Parliament and
confines the inquiry to the specific allegations concerning the judicial
officer. This clause excludes the exercise by the Commission of ad-hoc
investigative powers.
Clause 17: Decision of questions
Clause 17.1 requires matters before the Commission to be determined in
accordance with the view of the majority of members. The view of the
majority will prevail over those with dissenting opinions.
Clause 17.2 provides that the dissenting views of members will be
recorded. Parliament is not obliged to accept the view of the majority of
the Commission. It is the Parliament alone which has the Constitutional
power to decide whether a federal judicial officer is to be removed from
office.
Clause 18: Reports
Clause 18.1 requires the Commission to report its findings to the
Parliament, specifically, the Speaker of the House of Representatives and
the President of the Senate. The recommendation of the Commission will be
a significant factor in the Parliament's decision whether to remove a
federal judicial officer exercising its powers under section 72 of the
Constitution.
Clause 18.2 is a procedural clause that sets out what is to occur if
the Commission concludes a report following the dissolution of
Parliament. To ensure that the matter is dealt with expediently, the
Commission's report is to be furnished directly to the incoming Speaker
of the House of Representatives and President of the Senate after the
first sitting day of the new Parliament.
Clause 18.3 sets out the detail required of the Commission's report
and the items which must be included so as to ensure that the Parliament
has available to it the material it requires to exercise its
constitutional powers. This is designed to achieve transparency of the
Commission's processes and its findings. The inclusion of a full copy of
the transcript of the Commission's hearing as well as the reports of each
of the Commissioners enables the Parliament to be fully informed about
the matters heard by the Commission and about any points of disagreement
between the Commissioners should they exist.
Clause 18.4 requires that after the report is received by the
President of the Senate and Speaker of the House of Representatives it be
laid before the Senate and the House of Representatives. This enables the
process of determining judicial misconduct to remain transparent and
assists Parliament to make its determination with the best evidence
available.
Clause 18.5 allows the Commission to prepare and deliver a separate
report to Parliament in circumstances in which it is of the opinion that
if any of its findings or evidence given to it at a hearing were made
public this could unduly prejudice the rights of a person to a fair trial
or the conduct of an investigation, or may disclose a confidential source
of information or prejudice the safety of a person.
Clause 18.6 ensures that such a separate report is not made public and is
available for inspection only to members of the Parliament and the
judicial officer who is the subject of the inquiry.
Part 5 - Powers and proceedings of the Commission
Clause 19: Conduct of proceedings
Clause 19.1 requires that the proceedings of the Commission be conducted
in public, unless it is in the interests of the justice for a private
hearing to be held.
Clause 19.2 requires that the commission conduct its enquiry expediently
but with out compromising the proper consideration of the matter.
Clause 20: Power to summon witnesses and take evidence
Clause 20.1 gives power to the Commission to summon a person to give
evidence before the Commission or produce documents or other evidence.
This gives the Commission the investigative power necessary to ensure it
can access the best and all available evidence.
Clause 20.2 gives the Commission's Presiding Member the power to require
the production of a document from a person appearing before the
Commission.
Clause 20.3 gives the Commission the power to require that evidence be
given on oath or affirmation and authorises a member of the Commission or
a person authorised by it to administer an oath or affirmation. This
ensures the Commission hears truthful evidence and that those appearing
before it understand the importance of giving truthful evidence.
Clause 20.4 permits a member of the Commission to serve written notice on
a person requiring them to produce a document or thing. Notice must be
issued with the relevant detail as to what must be produced and where and
when it needs to be produced. This gives the Commission the power to
gather the best evidence it deems necessary to make decisions.
Clause 20.5 provides that an authorised person is one who is
authorised in writing by the Presiding Member or part of a class so
authorised.
Clause 20.6 provides that no unsworn evidence may be given to the
Commission, including by a federal judicial officer.
Clause 21: Search warrants
Clause 21.1 empowers the Commission to issue search warrants in
circumstances in which it has reasonable grounds to suspect that evidence
is at risk of being destroyed or lost if a summons were not issued for
its production.
Clause 21.2 enables a person who is authorised by the Commission to issue
warrants under this section.
Clause 21.3 details the powers that are given to a member of the AFP,
State or Territory Police or other person named in the warrant to enter,
search, seize and deliver items relevant to the Commission's inquiry.
Clause 21.4 specifies that a search warrant must include a statement of
purpose, including a reference to the Commission's inquiry, the times at
which entry is authorised, a description of the items which may be seized
and the date at which the warrant expires.
Clause 21.5 authorises the person executing the warrant to seize other
items reasonably considered to be connected to an inquiry being
conducted by the Commission.
Clause 21.6 provides that where the section refers to a "thing" this
also includes a document.
Clause 22: Previous inquiries
Clause 22 requires the Commission in the course of its consideration of
an allegation to have regard to findings made or outcomes of previous
official inquiries into the allegation and take those into account to
the extent it deems it necessary or desirable. The Commission is not to
be hindered by any law or the privileges of either House of the
Parliament in obtaining the appropriate records of evidence or findings
made in such an inquiry.
Clause 23: Hearings
Clause 23.1 allows the Commission to hold hearings for the purposes of
its inquiry.
Clause 23.2 allows the Commission to determine the place within
Australia that the hearing takes place.
Clause 23.3 requires the "Presiding Member" to preside at hearings
before the Commission.
Clause 23.4 gives the federal judicial officer appearing before the
Commission the right to appear and be represented by a legal
practitioner at any time during the hearing.
Clause 23.5 provides that where proceedings of the Commission are
conducted in private the Commission can give directions as to who may be
present and whether they may be legally represented.
Clause 23.6 ensures that the legal representative of a person giving
evidence is not excluded from the hearing.
Clause 23.7 ensures that during private hearings only approved persons
are present.
Clause 23.8 enables witnesses to be examined and cross-examined before
the Commission.
Clause 23.9 gives the Commission the power to make procedural directions
as necessary for the Commission to function effectively.
Clause 23.10 empowers the Commission to give directions that evidence or
a document or thing seized pursuant to a warrant or any other
information that may identify a witness not be published if it may
prejudice the safety of a person or the right to a fair trial of a
person charged with an offence.
Clause 24: Arrest of witness failing to appear
Clause 24.1 gives the Presiding Member the power to issue a warrant for
apprehension of a person where a person served with a summons to attend
the Commission as a witness fails to attend.
Clause 24.2 provides that the warrant shall authorize apprehension of
the witness and their detention in custody until released by order of
the Presiding Member.
Clause 24.3 gives the power of execution of the warrant to the
Australian Federal Police or the State or Territory Police or the person
to whom the summons is addressed. It authorises these persons to break
and enter if necessary in order to execute the warrant.
Clause 24.4 provides that a witness shall not be relieved, by virtue of
their apprehension by warrant, of their liability for their non-
compliance with the summons.
Clause 25: Powers of the Commission in relation to documents and other
things
Clause 25.1 permits a member of the Commission or person authorised by
it to inspect, retain or copy any documents or things produced before or
delivered to the Commission.
Clause 25.2 provides for the return of documents retained by the
Commission in instances where the Commission no longer requires their
use. This is particularly important where original documents have been
provided to the Commission.
Clause 25.3 provides that an authorised person referred to in this
section is one who is authorised in writing by the Presiding Member.
Clause 26: Standard of proof, admissibility of evidence and natural justice
Clause 26.1 requires that the Commission be satisfied that the facts
necessary for making its decision are proved on the balance of
probabilities.
Clause 26.2 requires that in determining whether the standard of proof
has been met the Commission take into account the importance of the
evidence before it and the gravity of the matters alleged. Whereas the
criminal standard of proof does not apply, the standard will be higher
where the allegation is more serious.
Clause 26.3 provides that the Commission is not bound by the rules of
evidence and may inform itself in whatever manner it deems appropriate
to gather material necessary to make its decision.
Clause 26.4 requires the Commission to act in accordance with the rules
of natural justice.
Clause 27: Statements made by witness not admissible in evidence against
the witness
Clause 27.1 makes statements and disclosures made during the
giving of evidence by a witness non-admissible against a person in a
State or Territory civil or criminal proceeding.
Clause 27.2 excludes the application of this section to offence
proceedings under the Act.
Clause 28: Protection of members, etc
Clause 28.1 provides members of the Commission with the same
protection and immunity as a Member of Parliament in the performance of
their functions or as the powers of a Parliamentary Committee.
Clause 28.2 affords witnesses the same protection as witnesses
before a Parliamentary committee.
Clause 28.3 affords legal practitioners assisting the Commission
the same protection and immunities as a legal practitioner before a
Parliamentary committee hearing.
Clause 28.4 provides that proceedings in the Commission and
evidence before it are to be considered evidence before a Parliamentary
committee for the purpose of the Parliamentary Privileges Act.
Part 4 - Offences
Clause 29: Application of the Criminal Code
Clause 29 provides that chapter 2 of the Criminal Code applies to
offences under the Act. The Criminal Code establishes the general
principles of criminal responsibility.
Clause 30: Unauthorised presence at hearing or publication of evidence
Clause 30 makes it an offence for unauthorised persons to be present at
private hearings. It also makes it an offence to publish evidence in
contravention of the Act. Offences against this section are summary
offences and subject to a fine not exceeding $100,000 or up to six
months imprisonment.
Clause 31: Failure of witnesses to attend or produce documents
Clause 31.1 imposes a penalty on persons who fail to answer to a summons
to attend the Commission and persons who fail to attend from day to day
without being excused. The maximum penalty is $100,000 or a term of six
months imprisonment. Non-attendance is a strict liability offence,
although it is a defence if a witness has a 'reasonable excuse' for
their non-attendance.
Clause 31.2 makes it an offence for a witness to fail to produce a
document or thing as required by a summons or by a member of the
Commission. A penalty of $100,000 or six months imprisonment applies.
The offence is one of strict liability, but if a reasonable excuse
exists there is no offence under this section.
Clause 31.3 specifies a defence to the offence prescribed in 32.2 by
providing that if the document would not have been relevant to the
proceedings then the person required to have produced it will be excused
from not having produced it. The onus of proof in such a case is on the
defendant.
Clauses 31.4 provides that if a person fails to produce a document or
thing as required by a notice issued in accordance with subsection 20.4
they are subject to penalty. This provision is intended to deter non-
compliance with a notice issued under subsection 20.4.
Clause 31.5 provides that a reasonable excuse is a defence to the
offending prescribed in 31.4.
Clause 31.6 provides a defence where the document or thing required to
be produced was not relevant to the Commission's inquiry.
Clause 32: Penalty for refusing to be sworn or to give evidence
Clause 32.1 makes it an offence for any person appearing as a witness to
refuse to answer questions or give evidence on oath or affirmation.
Without persons willing to provide evidence on oath or affirmation the
Commission is left with unreliable evidence upon which to base its
decisions or no evidence at all.
Clause 32.2 prescribes the penalty for this offence to be a fine not
exceeding $100,000 or up to six months imprisonment.
Clause 32.3 provides that the offence is one of strict liability.
Clause 33: Acts or omissions on different days to constitute separate
offences
Clause 33 provides that offences committed on different days are to be
considered as separate offences. Where an offence is not one of strict
liability, the intention (mens rea) can be formed on each day of the act
or omission.
Clause 34: Self- incrimination
Clause 34.1 stipulates that where someone relies on a "reasonable
excuse" for refusing or failing to produce a document, a reasonable
excuse cannot be that the document or thing is likely to or will
incriminate the person or make them liable to penalty. This makes it
clear that persons who are required to produce documents or things to
the Commission are obliged to produce the requested document for
consideration regardless of the individual consequences.
Clause 34.2 stipulates that a person appearing before the Commission
cannot fail to answer a question by the Presiding Member on the basis
that the answer would be incriminating to them or make them liable to a
penalty.
Clause 35: Excuse of other legislation
Clause 35.1 provides that it is not a reasonable excuse for a person to
refuse to answer a question or produce a document if to do so is
prohibited by or under any Act. This seeks to enable persons to produce
evidence requested by the Commission without limiting the production of
evidence in any way, even by other legislation.
Clause 35.2 provides that the failure to answer questions put to a person
by the Presiding Member cannot be on the basis that answering the
question would be prohibited by another Act.
Clause 35.3 provides that the answering of a question or production of a
document or thing when required by the Commission will not be an offence
under any Act which prohibits disclosure of information or production of
an item.
Clause 36: False or misleading evidence
Clause 36.1 makes it an offence for a person to give evidence to a
hearing of the Commission that is to their knowledge false or misleading.
Clause 36.2 makes this an indictable offence punishable by a fine not
exceeding $500,000 or up to five years imprisonment.
Clause 36.3 provides that where the defendant and prosecutor consent an
offence under this section may be heard and determined in a court of
summary jurisdiction.
Clause 36.4 sets a lower penalty that may be imposed when an offence
under this section is heard in a court of summary jurisdiction.
Clause 37: Destroying documents or other things
Clause 37.1 makes it an offence for a document that may be relevant to
the Commission's inquiries to be destroyed, concealed or otherwise
damaged either knowingly or with reckless indifference.
Clause 37.2 makes this an indictable offence punishable by up to two
years imprisonment or a fine not exceeding $200,000.
Clause 37.3 provides that where the prosecutor and defendant consent, a
court of summary jurisdiction may hear and determine an offence under
this section. The rationale being that the nature of the offending may
not be so serious as to attract the penalties that can only be imposed
in the higher jurisdiction.
Clause 37.4 stipulates that where a person is tried in a summary
jurisdiction, the maximum penalty imposed cannot exceed a fine of
$100,000 or period of imprisonment of 12 months.
Clause 38: Injury to witnesses
Clause 38.1 provides protection to witnesses appearing before the
Commission and persons producing material evidence to the Commission.
This clause makes it an indictable offence for a person to inflict
violence, punishment, damage, loss, or disadvantage on persons assisting
the Commission. The serious nature of the offending is reflected by the
classification of this as an indictable offence punishable by a fine of
$100,000 or one year imprisonment.
Clause 38.2 makes it clear that, despite the rest of clause 38, a
judicial officer can be dismissed from their appointment based upon their
testimony before the commission. Any other reading of clause 38 could
defeat the purpose of the Act.
Clause 39: Dismissal by employers of witness
Clause 39.1 imposes penalties upon employers who dismiss or cause
prejudice to their employees for their appearance before or assistance to
the Commission. Where an employer penalises a person from appearing as a
witness at the Commission or who is required to produce a document to the
Commission, that employer will be guilty of an indictable offence
punishable by a fine of $100,000 or one year imprisonment.
Clause 39.2 provides that where the reason for the dismissal does not
pertain to the employee's involvement in an inquiry by the Commission the
employer is not subject to the penalties under this section.
Clause 39.3 makes it clear that, despite the rest of clause 39, a
judicial officer can be dismissed from their appointment based upon their
testimony before the commission. Any other reading of clause 39 could
defeat the purpose of the Act.
Clause 40: Preventing witnesses from attending or producing document
Clause 40.1 makes it an indictable offence punishable by one year's
imprisonment for any person to intentionally prevent a person from
attending the Commission to give evidence or produce documents as
specified in a summons.
Clause 40.2 makes it an indictable offence, punishable by one year's
imprisonment for a person to intentionally prevent a person who is
required to produce a document or other thing pursuant to a notice under
section 20.4 from doing so.
Clause 41: Bribery of witness
Clause 41.1 makes it an indictable offence punishable by five years'
imprisonment for a person to bribe a witness to give false evidence or
withhold true testimony from the Commission.
Clause 41.2 makes it an indictable offence punishable by five years
imprisonment for a person to bribe a person required to produce a
document before the Commission.
Clause 42: Fraud on witness
Clause 42.1 makes it an indictable offence punishable by two years'
imprisonment for a person to practice fraud or deceit or to make a false
statement to a witness with the intention of affecting their testimony
before the Commission.
Clause 42.2 makes it an indictable offence punishable by two year's
imprisonment for a person to by fraud or deceit seek to make a person
fail to comply with a notice to produce a document or thing under section
20.
Clause 43: Commission may communicate information
Clause 43.1 provides that where the Commission becomes aware that there
has been conduct that may constitute criminal offending, members of the
Commission may pass this information on to the appropriate law
enforcement agency.
Clause 43.1A provides that this includes breaches of civil, criminal and
administrative law.
Clause 43.2 provides that if the Commission obtains information,
evidence or a document or thing which it considers to be relevant to a
matter before a Royal Commission it may pass it on to the Royal
Commission.
Clause 43.2A enables the Commission to report to the Australian Crime
Commission if, in the course of its inquiry, it obtains information or
evidence or a relevant document or thing that relates to the performance
of the functions of the Australian Crime Commission.
Clause 43.3 is an explanatory clause which explains that where in the
preceding sections there has been a reference to a document thing, this
includes a reference to the contents of the document or a description of
the thing.
Clause 44: Contempt of Commission
Clause 44.1 makes it an offence punishable by a fine of $10,000 or three
months imprisonment for a person to intentionally insult, disturb or
disrupt the proceedings of or defame or engage in any intentional
contempt of the Commission.
Part 5 - Miscellaneous
Clause 45: Regulations
Clause 45.1 empowers the Governor General to make regulations in relation
to the Act.