Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
PARLIAMENTARY (JUDICIAL MISBEHAVIOUR OR
INCAPACITY) COMMISSION BILL 2010
Supplementary Explanatory Memorandum
ADDITIONAL NOTES ON CLAUSES
Clause 21 Power to summons witnesses and take evidence
Clause 21 does not abrogate legal professional privilege. There is
no need for a statement to this effect. It is the view of the Office of
Parliamentary Counsel that specific provisions stating legal
professional privilege is not abrogated will not be included unless it
is reasonably arguable that a Bill could be read as abrogating the
privilege. That is neither the intention nor the effect of this Bill.
Clause 28: Statements made by witness not admissible in evidence
against the witness
The protection provided by Clause 28(1) is use immunity. It does
not exclude derivative uses. Commonwealth criminal law policy
requires that use immunity is generally only appropriate if there is a
realistic prospect that a person being questioned may provide
information that would disclose the commission of a serious offence.
In the case of alleged judicial misbehaviour the range of possible
misfeasance potentially extends to a wide variety of very serious
criminal offences--including corruption. The Commission should
not be placed in the position of having either to entirely immunise
the criminal conduct of co-offenders or curtail its investigatory role
into the alleged misconduct of a judicial officer.
Clause 36: Excuse of other legislation
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. As a result a person could not be liable for a
penalty under those provisions.
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Explanatory notes on proposed Amendments
The numbers in brackets refer to the numbering of the proposed
amendments. The text explains their intended operation.
(1) The Clerk of the House of Representatives has advised that the
commencement provision should refer to a proclamation not being
able to be made until funds are appropriated because the Bill may
be regarded as involving a financial initiative. The amendment
removes a risk of ambiguity in respect of the test for funds having
been appropriated such that the provision now refers to the
Minister being satisfied that funds have been appropriated and
refers to 12 months rather than 6 months as the time in which such
a proclamation can be made. That longer time is because 6 months
may not be sufficient time especially as an election may be called
during the period should the Bill be passed in the current session.
(2) Amends the definition of Commission to refer to the Commission
established under section 8 (rather than the Commission
appointed).
(3) Adds a clarifying ending to the heading of clause 21 referring to
the Commission's power to obtain documents.
(4) Requires a summons issued under clause 21(1) to be in writing.
(5) Requires a summons issued under clause 21(1) to refer to the place
where and the time when the person summonsed must appear
before the Commission.
(6) Adds a new Clause 21A Additional requirements--summonses
and notices. The additional requirements include (a) that
summonses must indicate the general nature of the matters on
which the person is to be questioned unless that would prejudice
the effectiveness of the hearing, (b) that a person summonsed
should have at least 14 days notice of a hearing, and; (c) that a
summons must include information about the persons rights to
legal representation, the possibility of arrest for failing to appear
and the consequences of failing to attend or produce documents.
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(7) Corrects a technical but important error in the drafting of clause
22(1)(b)--the point being that issuing a summons would allow
someone the opportunity to conceal or destroy something instead
of providing it to the Commission, while a search warrant would
allow police to locate the relevant thing directly.
(8) Restricts the carrying out of search warrants to police officers.
(9) Requires search warrants to be executed within 7 days.
(10) Adds a new Clause 22A Details of search warrant to be
given to occupier, etc. The additional requirements require the
police officer executing the warrant to identify him or her self and
make a copy of the warrant available to the occupier of any
premises or person in control of a vessel, aircraft or vehicle. This
aligns the requirements for the execution of a warrant issued by the
Commission to those contained in Division 2 of Part IAA of the
Crimes Act 1914 to ensure proper accountability for the use of the
power.
(11) Adds a new Clause 22 B Dealing with things seized under
search warrant The new clause clarifies how things seized should
be dealt with. It requires the police officer executing the warrant to
give a receipt for anything seized and defines the obligation to
return seized items after the requirement for their retention has
passed. This aligns the requirements for the execution of a warrant
issued by the Commission to those contained in Division 2 of Part
IAA of the Crimes Act 1914 to ensure proper accountability for the
use of the power.
(12) Adds new Clause 22C Commission must prepare and
retain statements of reasons about search warrants The new
clause sets out the procedural requirements that the Commission
must follow before it exercises the power to issue a search warrant.
The Commission must prepare and retain a written statement
setting out the reasons why it suspects a thing or things exist that is
or are relevant to the Commissions' enquiry, why the Commission
suspects the thing or things is or are on a particular premise or
place and why it believes it or they night be concealed, mutilated,
lost or destroyed if a warrant were not to be issued. This aligns the
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requirements for the issue of a warrant by the Commission to those
contained in Division 2 of Part IAA of the Crimes Act 1914 to
ensure proper accountability for the use of the power.
(13) Confers an entitlement of legal counsel appointed to
represent a justice into whose conduct or capacity an enquiry is
occurring to cross-examine witnesses, subject to the control of the
Commission. This makes explicit an entitlement that which was
implicit in the Bill.
(14) Restricts the power to arrest a person failing to appear to the
members of the police.
(15) A technical amendment to align the language of the sub-
clause to previous provisions referring to `land, premises, vessel,
vehicle or aircraft.'
(16) Clarifies that the protection for witnesses provided by Clause
28 does not extend to proceedings under the Act and directly
related proceedings relating to the Act involving accessory
conduct, incitement, conspiracy, false and misleading statements or
obstruction of Commonwealth public officials.
(17) This amendment is a technical one made on advice from the
Office of Parliamentary Counsel. It deletes the words `as amended
by this Act' in Clause 29(4) of the Bill because the inclusion of
those words may imply that subsequent amendments made by later
Acts do not apply. The provision, without these words, will have
the intended effect as cross references to amended provisions apply
to the provisions as amended from time to time.
(18) Realigns the penalty prescribed based on comparable
provisions of the Royal Commissions Act 1902 and the Proceeds of
Crime Act 2002
(19) Realigns the penalty prescribed based on comparable
provisions of the Royal Commissions Act 1902 and the Proceeds of
Crime Act 2002
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(20) Realigns the penalty prescribed based on comparable
provisions of the Royal Commissions Act 1902 and the Proceeds of
Crime Act 2002
(21) Realigns the penalty prescribed based on comparable
provisions of the Royal Commissions Act 1902 and the Proceeds of
Crime Act 2002
(22) Realigns the penalty prescribed based on comparable
provisions of the Royal Commissions Act 1902 and the Proceeds of
Crime Act 2002
(23) Amends Clause 36(1) to omit `the answering of the question
or' because the subsection is only about the production of
documents.
(24) Amends Clause 36(2) to refer to `a member' because any
member, not just the Presiding Member, can ask questions in
hearings.
(25) Realigns the penalty prescribed based on comparable
provisions of the Royal Commissions Act 1902 and the Proceeds of
Crime Act 2002
(26) Realigns the penalty prescribed based on comparable
provisions of the Royal Commissions Act 1902 and the Proceeds of
Crime Act 2002
(27) Realigns the penalty prescribed based on comparable
provisions of the Royal Commissions Act 1902 and the Proceeds of
Crime Act 2002
(28) Realigns the penalty prescribed based on comparable
provisions of the Royal Commissions Act 1902 and the Proceeds of
Crime Act 2002
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(29) Realigns the penalty prescribed based on comparable
provisions of the Royal Commissions Act 1902 and the Proceeds of
Crime Act 2002
(30) Realigns the penalty prescribed based on comparable
provisions of the Royal Commissions Act 1902 and the Proceeds of
Crime Act 2002
(31) Realigns the penalty prescribed based on comparable
provisions of the Royal Commissions Act 1902 and the Proceeds of
Crime Act 2002
(32) Realigns the penalty prescribed based on comparable
provisions of the Royal Commissions Act 1902 and the Proceeds of
Crime Act 2002
(33) Realigns the penalty prescribed based on comparable
provisions of the Royal Commissions Act 1902 and the Proceeds of
Crime Act 2002
(34) Realigns the penalty prescribed based on comparable
provisions of the Royal Commissions Act 1902 and the Proceeds of
Crime Act 2002
(35) Realigns the penalty prescribed based on comparable
provisions of the Royal Commissions Act 1902 and the Proceeds of
Crime Act 2002
(36) A technical drafting amendment to ensure compliance with
the intent referred to in the Explanatory Memorandum.
Duncan Kerr SC MP
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