Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
PARLIAMENTARY (JUDICIAL MISBEHAVIOUR OR
INCAPACITY) COMMISSION BILL 2010
OUTLINE
Purpose / Object of the Bill
The purpose of the Bill is to establish an independent Parliamentary Commission. The
Commission will be empowered to test complaints of judicial misbehaviour or
incapacity which have been referred to it by either House of the Parliament. The
Commission will report its deliberations to the Parliament. Procedures to ensure
transparency and fairness have been built in. The House and the Senate retain their
exclusive constitutional powers. It will remain open to the Parliament to accept or
reject any recommendation for the removal of a justice.
Rationale for the Bill
The Bill will 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 testing of complaints against federal judicial officers and reduce the
potential for damaging and unfounded attacks on the federal judiciary.
Linked proposal for amendment to Standing Orders
The main provisions of the Bill come into effect once a matter is referred to the
Parliamentary Commission by either House of the Parliament. The Bill should be read
as linked to proposed Standing Order 271 for an Address for the Removal of a federal
justice. Proposed Standing Order 271 requires that a motion praying for the removal
of a justice must make specific allegations in precise terms and only after notice given
to the justice. The proposed Standing Order will ensure that the procedures in this Bill
are not triggered for trivial reasons and that a Member who, deliberately or recklessly,
puts forward baseless allegations against a justice is guilty of contempt of the House.
The proposed standing orders will further ensure that any justice facing removal
following an adverse report by the Parliamentary Commission will be permitted to
address the House before any vote is taken.
Rationale for the Commission not having broader powers
The only role of the Parliamentary Commission proposed by this Bill is to stand ready
to assist the national Parliament discharge its constitutional responsibility if a matter
arises that the Parliament considers sufficiently serious to warrant the possible
dismissal of a Ch III federal justice. Those occasions will be rare--but the Bill is
premised on the view that with the expansion in their number such occasions will
arise and it is sensible to decide in advance who is to undertake such a role so that
there can be no suggestion that the selection is biased for or against the interests of
any particular justice. The Parliamentary Commission has no role in advising in
relation to the appointment of justices, no independent powers to initiate removal
procedures and no power to reprimand or dismiss justices. Some respected
1
constitutional lawyers have suggested to the contrary but there are good grounds, such
as those advanced by Quick and Garran to conclude that the structure and language of
s 72 within Ch III of the Australian Constitution precludes conferring such powers on
an administrative or executive body because to do so would involve an impermissible
interference with constitutionally protected judicial independence.
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 s 72 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
2
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.
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. There are currently 145 justices who
have been appointed under Ch III of the Constitution. As a consequence, there is an
increased potential that the Parliament may be called on to exercise its exclusive
constitutional power under section 72 to remove a federal judicial officer for
misconduct or incapacity.
There is currently no settled or agreed 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 procedures adopted `ad hoc' by the Senate to consider the
allegations against the late Justice Murphy were contentious. Moreover it is
implausible that either the House and the Senate could deal with serious allegations
against a justice without the assistance of a preliminary investigation by a body of the
kind proposed by this measure. The Parliament cannot delegate its ultimate
constitutional responsibilities under s 72 to any other body but it is entitled to appoint
suitable advisors and to empower those advisors to assist it to discharge its
constitutional functions. That is what this Bill provides for. 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 known and transparent process for the determination of the
substance of allegations against a judicial officer has the potential to undermine
public confidence in both the Parliament and the judiciary. Ad hoc processes are
bound to be seen as unfair and risking unwarranted damage to the reputation of any
judicial officer affected by them. The Bill will establish a consistent, rule-based
method for reporting to the Parliament by an evidence-based process which is
transparent, consistent and accountable.
3
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 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 Bill's operative provisions do not come into effect until separate provision is
made for the Commission's funding. It is anticipated that the financial impact of the
Act, once Proclaimed (see notes on Clause 2 below) will be negligible in most years.
Costs will relate directly to the number of instances it is called upon to advise in
respect of.
4
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 but formal sections of the Act having no financial
consequences will commence when the Act receives royal assent.
The operative sections of the Act come into effect by Proclamation but only after
provisions have been made for the funding of the functions Commission. As that
will require an appropriation it is not suitable for inclusion in this Act. If a
Proclamation is not made within 6 months they do not commence at all.
Clause 2.2 is a model drafting provision with no operative consequences.
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: Schedule(s); (see at conclusion of EM)
Clause 5: This Act binds the Crown
Clause 5 provides that the Act binds the Crown but does not make the Crown
liable to be prosecuted for an offence.
Clause 6: 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.
5
"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 7: Administration
Clause 7 provides that the Attorney-General is responsible for administering the
Act.
Part 2 - Establishment of the Commission
Clause 8: Establishment
Clause 8.1 establishes the Parliamentary (Judicial Misbehaviour or Incapacity)
Commission.
6
Clause 9: Members
Clause 9.1 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 9.2 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 9.3 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 9.4 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 10: Vacancy in membership
Clause 10.1 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 10.2 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.
7
Clause 10.3 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 11: Remuneration of members
Clause 11.1 makes provision for the payment of an honorarium to members of the
Commission in recognition of their service.
Clause 11.2 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 11.3 provides that the Remuneration Tribunal will determine the payments
to be made to members.
Clause 11.4 provides that members are entitled to prescribed allowances.
Clause 11.5 provides that the payments authorised by this clause are subject to the
provisions in the Remuneration Tribunal Act 1973.
Clause 12: Staff of the Commission
Clause 12.1 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 12.2 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 12.3 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 13: Counsel assisting the Commission
Clause 13 authorises the Commission to appoint a legal practitioner to act as
counsel to the Commission to assist it to perform to its functions.
Clause 14: Legal and financial assistance to Justice
Clause 14.1 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.
8
Clause 14.2 requires the Attorney-General to comply with an application made by
a judicial officer under the special circumstances scheme.
Clause 15: Reimbursement of expenses of witnesses
Clause 15 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 16: Records of the Commission
Clause 16 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 17: Functions
Clause 17.1 specifies that the function of the Commission is engaged when a
matter relating to a federal justice has been referred to it by a House of the
Parliament. It is required to enquire and to report its findings to Parliament. 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 do not and
cannot bind the Parliament but would greatly assist 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 and then reporting to it.
Clause 17.2 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 or own motion investigative powers.
Clause 18: Decision of questions
Clause 18.1 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 18.2 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.
9
Clause 19: Reports
Clause 19.1 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 assist Parliament decide
whether to remove a federal judicial officer exercising its powers under section 72
of the Constitution.
Clause 19.2 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 19.3 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 19.4 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 19.5 allows the Commission to prepare and deliver a separate in camera
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 19.6 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 20: Conduct of proceedings
Clause 20.1 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 20.2 requires that the commission conduct its enquiry expediently but with
out compromising the proper consideration of the matter.
10
Clause 21: Power to summon witnesses and take evidence
Clause 21.1 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 21.2 gives the Commission's Presiding Member the power to require the
production of a document from a person appearing before the Commission.
Clause 21.3 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 21.4 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 21.5 provides that an authorised person is one who is authorised in writing
by the Presiding Member or part of a class so authorised.
Clause 21.6 means that no person has the right to give evidence that cannot be
cross-examined upon (evidence by way of an unsworn statement).
Clause 22: Search warrants
Clause 22.1 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. While such
powers are sometimes thought best conferred upon Ch III judges, in this instance
it is peculiarly inappropriate for that to be the case. For the same reason the Act
will preclude serving (but not former) judges being a member of the Commission,
it is inappropriate to confer investigative and administrative functions associated
with the work of the Commission on serving judges. There are also constitutional
issues associated with the separation of powers that would make the conferral of
this power on a serving judge vulnerable to constitutional challenge.
Clause 21.2 enables a person who is authorised by the Commission to issue
warrants under this section.
Clause 22.3 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 22.4 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
11
authorised, a description of the items which may be seized and the date at which
the warrant expires.
Clause 22.5 authorises the person executing the warrant to seize other items
reasonably considered to be connected to an inquiry being conducted by the
Commission.
Clause 22.6 provides that where the section refers to a "thing" this also
includes a document--see definitions for the meaning of document.
Clause 23: 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 24: Hearings
Clause 24.1 allows the Commission to hold hearings for the purposes of its
inquiry.
Clause 24.2 allows the Commission to determine the place within Australia that
the hearing takes place.
Clause 24.3 requires the "Presiding Member" to preside at hearings before the
Commission.
Clause 24.4 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 24.5 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 24.6 ensures that the legal representative of a person giving evidence is
not excluded from the hearing.
Clause 24.7 ensures that during private hearings only approved persons are
present.
Clause 24.8 enables witnesses to be examined and cross-examined before the
Commission.
Clause 24.9 gives the Commission the power to make procedural directions as
necessary for the Commission to function effectively.
12
Clause 24.10 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 25: Arrest of witness failing to appear
Clause 25.1 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. While such powers are sometimes
thought best conferred upon Ch III judges, in this instance it is peculiarly
inappropriate for that to be the case. For the same reason the Act will preclude
serving (but not former) judges being a member of the Commission, it is
inappropriate to confer investigative and administrative functions associated with
the work of the Commission on serving judges. There are also constitutional
issues associated with the separation of powers that would make the conferral of
this power on a serving judge vulnerable to constitutional challenge.
Clause 25.2 provides that the warrant shall authorize apprehension of the witness
and their detention in custody until released by order of the Presiding Member. It
is implicit that detention is only permitted for and will not be for any period
longer than required for the purposes of the Act.
Clause 25.3 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 25.4 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 26: Powers of the Commission in relation to documents and other things
Clause 26.1 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 26.2 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. It is
implicit that where original documents are to be retained, unless there is good
reason to the contrary, a copy will be provided on request.
Clause 26.3 provides that an authorised person referred to in this section is one
who is authorised in writing by the Presiding Member.
Clause 27: Standard of proof, admissibility of evidence and natural justice
13
Clause 27.1 requires that the Commission be satisfied that the facts necessary for
making its decision are proved on the balance of probabilities.
Clause 27.2 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 27.3 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 27.4 requires the Commission to act in accordance with the rules of
natural justice.
Clause 28: Statements made by witness not admissible in evidence against the
witness
Clause 28.1 makes all statements and disclosures made during the giving of
evidence by a witness and documents produced pursuant to notice or summons
non-admissible against a person in any Commonwealth, State or Territory civil
or criminal court proceedings.
Clause 28.2 excludes the application of this section to offence proceedings under
the Act.
Clause 28.3 makes it clear that the Parliament is not a `court' for the purposes of
the Act.
Clause 29: Protection of members, etc
Clause 29.1 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. This reflects the appropriate status of
the Commission as a Parliamentary Commission.
Clause 29.2 affords witnesses the same protection as witnesses before a
Parliamentary committee.
Clause 29.3 affords legal practitioners assisting the Commission the same
protection and immunities as a legal practitioner before a Parliamentary
committee hearing.
Clause 29.4 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 30: Application of the Criminal Code
14
Clause 30 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 31: 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 1000 penalty units or up to six months imprisonment.
Clause 32: Failure of witnesses to attend or produce documents
Clause 32.1 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 1000 penalty units or a term of six
months imprisonment.
Clause 32.2 provides a defence if a witness has a `reasonable excuse' for their
non-attendance. For what is meant by a `reasonable excuse', see Clause 6 and
Clauses 35 and 36.
Clause 32.3 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
maximum penalty of 1000 penalty units or six months imprisonment applies.
Clause 32.4 provides a defence if a witness has a `reasonable excuse' for failing
to produce the document or thing. For what is meant by a `reasonable excuse',
see Clause 6 and Clauses 35 and 36.
Clause 32.5 specifies a defence to the offence prescribed in Clause 32.3 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 32.6 provides that if a person fails to produce a document or thing as
required by a notice issued in accordance with subsection 21.4 they are subject to
a maximum penalty of 1000 penalty units or imprisonment for 6 months. This
provision is intended to deter non-compliance with a notice issued under
subsection 21.4.
Clause 32.7 provides that a `reasonable excuse' is a defence to the offending
prescribed in 31.6. For what is meant by a `reasonable excuse', see Clause 6 and
Clauses 35 and 36.
Clause 32.8 provides a defence where the document or thing required to be
produced was not relevant to the Commission's inquiry.
Clause 33: Penalty for refusing to be sworn or to give evidence
15
Clause 33.1 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
1000 penalty units or up to six months imprisonment.
Clause 34: Acts or omissions on different days to constitute separate offences
Clause 33 provides that offences against sections 31,32 and 33 committed on
different days are to be considered as separate offences.
Clause 35: Self-incrimination
Clause 34.1 stipulates that where someone relies on a "reasonable excuse" for
refusing to answer a question or failing to produce a document, a reasonable
excuse does not include that the document or thing is likely to or will incriminate
the person or make them liable to penalty. However, a significant balancing
protection is provided in Clause 28 which protects witnesses against such self-
incrimination being relied on in proceedings outside of the Commission.
Clause 36: Excuse of other legislation
Clause 36.1 provides that it is not a reasonable excuse for a person to refuse to
produce a document if to do so is prohibited by or under any Act. This seeks to
enable persons who may otherwise be limited by law to produce evidence
requested by the Commission.
Clause 36.2 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 36.3 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 37: False or misleading evidence
Clause 37.1 requires a person not to give evidence to a hearing of the
Commission that is to their knowledge false or misleading.
Clause 37.2 makes this an indictable offence (requiring trial by jury) punishable
by a fine not exceeding 5000 penalty units or up to five years imprisonment.
Clause 38: Destroying documents or other things
16
Clause 38.1 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 recklessly.
Clause 38.2 makes this an indictable offence punishable by up to two years
imprisonment or a fine not exceeding 2000 penalty units..
Clause 39: Injury to witnesses
Clause 39.1 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 1000 penalty units or one year imprisonment.
Clause 39.2 makes it clear that, notwithstanding clause 39, a justice can be
removed based upon their testimony before the commission. Any other reading
of clause 39 would defeat the purpose of the Act.
Clause 40: Dismissal by employers of witness
Clause 40.1 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 1000
penalty units or one year imprisonment.
Clause 40.2 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. The defendant bears the burden of
proof of this exception.
Clause 40.3 makes it clear that, notwithstanding clause 39, a justice can be
removed based upon their testimony before the commission. Any other reading
of clause 39 would defeat the purpose of the Act. It may be doubted that this
provision is necessary given that a justice may not properly be regarded as an
employee of the Parliament but this clause removes the possibility of that
proposition being advanced.
Clause 41: Preventing witnesses from attending or producing document
Clause 41.1 makes it an indictable offence punishable by one year's
imprisonment or 1000 penalty units for any person to intentionally prevent a
person from attending the Commission to give evidence or produce documents
as specified in a summons.
Clause 41.2 makes it an indictable offence, punishable by one year's
imprisonment or 1000 penalty units for a person to intentionally prevent a person
17
who is required to produce a document or other thing pursuant to a notice under
section 21.4 from doing so.
Clause 42: Bribery of witness
Clause 42.1 makes it an indictable offence punishable by five years'
imprisonment or 5000 penalty units 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 or 5000 penalty units for a person to bribe a person required to
produce a document before the Commission to not comply.
Clause 43: Fraud on witness
Clause 43.1 makes it an indictable offence punishable by two years'
imprisonment or 2000 penalty units 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 43.2 makes it an indictable offence punishable by two year's
imprisonment or 2000 penalty units 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 21.
Clause 44: Commission may communicate information
Clause 44.1 provides that where the Commission becomes aware that there has
been conduct that may constitute criminal offending, the Commission may pass
this information on to the appropriate law enforcement agency. Note however,
that there are severe limits as to the use that may be made of such information as
direct evidence in prosecutions or civil penalty proceedings by reason of
Clause 28. Despite those restrictions the intelligence gained may be of
considerable value to law enforcement.
Clause 44.2 provides that the power to pass on information extends to breaches
of civil, criminal and administrative law.
Clause 44.3 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 44.4 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 44.5 is an explanatory clause which explains that where in the preceding
sections there has been a reference to a document or thing, this includes a
reference to the contents of the document or a description of the thing.
18
Clause 45: Obstruction of Commission
Clause 45.1 makes it an offence punishable by a fine of 100 penalty units 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 46: Regulations
Clause 46.1 empowers the Governor General to make regulations in relation to
the Act.
Schedule 1 - Amendments to the Parliamentary Privileges Act
1987
Schedule I amends s 16(3) of the Parliamentary Privileges Act 1987. The need
for this consequential amendment became evident during the criminal trial of the
late Justice Murphy. His counsel was unable to cross examine witnesses for the
prosecution in respect of their prior inconsistent statements given in relation to
previous (incomplete) removal proceedings commenced in the Senate. There is
a substantial risk of injustice to a justice in such an outcome. The effect of the
amendment is to permit cross examination in such instances.
Former Secretary of the Commonwealth Attorney-General's Department, Sir
Clarrie Harders supported such an amendment in his article, Parliamentary
Privilege--Parliament versus the Courts: Cross examination of Committee
Witnesses (1993) 67 The Australian Law Journal 110-142.
19