Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2022-2024
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
TRUTH AND JUSTICE COMMISSION BILL 2024
EXPLANATORY MEMORANDUM
(Circulated by authority of Senators Cox and Shoebridge)
TRUTH AND JUSTICE COMMISSION BILL 2024
OUTLINE
This bill would establish a Commission to inquire into and make recommendations to Parliament
on particular matters relating to historic and ongoing injustices against First Peoples in Australia
and the impacts of these injustices on First Peoples.
The Commission is to be known as the Truth and Justice Commission. The Commission is to be
constituted by 10 members consisting of one member from each State, the Australian Capital
Territory and the Northern Territory and 2 Chief Commissioners.
The members are to be appointed by the Joint Ministers. The Joint Ministers are defined as the
Attorney-General and the Minister for Indigenous Affairs.
A person must not be appointed as a member unless the Joint Ministers are satisfied that the
person has skills, knowledge or experience in a relevant field.
Before the Joint Ministers appoint a person as a member, they must consult with relevant
stakeholders. In appointing the members, the Joint Ministers must also ensure that a majority of
the members are First Nations people.
A member is appointed for a period of 2 years. A person cannot be appointed as a member for
more than 2 consecutive periods.
The Commission will inquire into:
• historical injustices perpetrated by the Commonwealth government, Commonwealth
government bodies and non-government bodies against First Peoples since pre-colonial
times;
• ongoing injustices perpetrated by the Commonwealth government, Commonwealth
bodies and non-government bodies;
• the causes and consequences of historical injustice, including a historical analysis of the
impact of colonisation and an evaluation of the contemporary relationship between First
Peoples and the Commonwealth government and the impact of contemporary policies,
practices, conduct and laws on First Peoples;
• how historical injustices can be effectively and fairly acknowledged and redressed in a
culturally appropriate way;
• how ongoing injustices can be addressed or redressed, including recommended reform to
existing institutions, law, policy and practice and considering how the Commonwealth
government can be held accountable for addressing these injustices and preventing future
injustices;
1
• how best to raise awareness and increase public understanding of the history and
experiences of First Peoples before and since the start of colonisation.
The Commission must submit to the President and the Speaker a report containing its findings of
fact and any recommendations relevant to the inquiry that the Commission thinks fit. The report
must be submitted on or before the end of the period of four years starting on the commencement
of the bill, unless that period is extended by a resolution of the Senate.
NOTES ON CLAUSES
Part 1--Preliminary
Clause 1: Short title
1. Clause 1 is a formal provision specifying the short title of the Bill.
Clause 2: Commencement
2. This Bill is to commence the day after it receives Royal Assent.
Clause 3: Simplified outline of this Act
3. Clause 3 provides an outline of the Act and its purpose.
Clause 4: Act binds Crown
4. Clause 4 provides that the Act binds the Crown in each of its capacities.
Clause 5: Definitions
5. Clause 5 defines the terms used in the Act.
Part 2--Establishing the Truth and Justice Commission
Clause 6: Establishment of Commission
6. Clause 6 establishes the Truth and Justice Commission and provides for it to be
constituted by 10 members consisting of one member from each State, the Australian Capital
Territory and the Northern Territory and 2 Chief Commissioners.
Clause 7: Appointment of members
7. Clause 7 specifies how Commission members are to be appointed by the Joint Ministers
and provides for the Joint Ministers to appoint 2 of the members as the Chief Commissioners.
2
Clause 8: Terms of reference
8. Clause 8 provides for the terms of reference that define the matters that the Commission
must inquire into.
Clause 9: Commission may have concurrent functions and powers under State or Territory
laws
9. Clause 9 provides for the States and Territories to confer concurrent functions or powers
on the Commission.
Clause 10: Report to the Parliament
10. Clause 10 requires the Commission to submit a final report within 4 years of
commencement and allows the Commission to submit interim reports if it sees fit. The final
report must contain findings of fact, including the evidence necessary to substantiate the findings
of fact, and make any relevant recommendations.
Part 3--Powers of the Truth and Justice Commission
Clause 11: Hearings
11. This clause provides for the Commission to hold hearings anywhere in Australia.
Hearings are to be public unless otherwise determined by the Commission, in which case the
Commission can hold closed hearings. People appearing before the Commission can be
represented by a lawyer.
12. The Commission must give consideration to the customs, traditions, rules and legal
systems of First Peoples who are appearing before the Commission, or who are likely to be
affected by evidence given before the Commission.
13. The Commission has the power to give directions relating to the publication of
proceedings, and must ensure that any publication does not prejudice or endanger a person, or
interfere with proceedings.
Clause 12: Counsel assisting the Commission
14. This clause provides for the Commission to appoint lawyers to assist the Commission as
counsel, either in general or in relation to particular matters.
Clause 13: Power to summon witnesses and take evidence
15. This clause provides the Commission with coercive powers to compel a witness to attend
a hearing, to give evidence and to produce documents. Counsel assisting the Commission may
also cross-examine a witness as well as people called to give evidence or their legal practitioners.
3
Clause 14: Arrest of witness failing to appear
16. This clause provides the Commission with the power to issue an arrest warrant to bring a
witness before a hearing or hold them in custody until ordered by the Commissioner.
17. The execution of the warrant will be carried out by the Australian Federal Police or a
police officer of a State or Territory who will have legal access to premises.
18. Before issuing a warrant, the Commissioner is required to give consideration to the
context of First Nations people's negative experiences in the justice system and the overall best
interests of First Nations communities.
Clause 15: Search warrants
19. This clause provides the Commission with the power to issue a search warrant to obtain
relevant material if they have reasonable grounds to suspect that the documents or material
would be concealed, lost, mutilated or destroyed if summonsed.
20. The execution of the warrant will be carried out by the Australian Federal Police or a
police officer of a State or Territory who will have legal access to premises.
Clause 15: Powers of Commission in relation to documents and other things
21. This clause provides the Commission with the power to retain and inspect documents in
its possession for as long as deemed necessary. It also requires the Commission to return these
documents when finished or no longer needed.
Part 4--Offences
22. This Part sets the penalty regime for various offences relating to the conduct of the
inquiry.
4
Clause Title Maximum penalty
17 Unauthorised presence at 6 months imprisonment
hearing or publication of
evidence
18 Failure of witnesses to attend or 6 months imprisonment
produce documents
19 Refusal to be sworn or give 6 months imprisonment
evidence
21 False or misleading evidence 5 years imprisonment
22 Destroying documents or other 2 years imprisonment
things
23 Intimidation or dismissal of 5 years imprisonment
witnesses
24 Preventing witnesses from 12 months imprisonment
attending
25 Bribery of witness 5 years imprisonment
26 Fraud on witness 2 years imprisonment
27 Contempt of Commission 12 months imprisonment
23. Clause 20 clarifies that each act or omission under clause 18 constitutes a separate
offence.
Part 5--Operation of the Commission
Clause 28: Death, incapacity or resignation of member
24. This clause stipulates that should the Commissioner die, become physically or mentally
incapable, or resign by notice to the President of the Senate, a new appointment will be made by
the Joint Ministers under clause 7.
Clause 29: Remuneration and allowances
25. This clause requires that the Commissioner is to be paid the remuneration determined by
the Remuneration Tribunal and the allowances prescribed by the Rules.
5
Clause 30: Staff of the Commission
26. This clause provides that the Commission will have authority over hiring the relevant
number of staff and setting their terms of appointment and remuneration and that staff must
conduct themselves in accordance with the directions provided by the Commission.
Clause 31: Protection of member and others
27. This clause provides that the protections and immunities of members of the Commission
will be the same as a Justice of the High Court. Similarly, a legal practitioner assisting the
Commission has the same protections as a barrister appearing in the High Court and witnesses
have the same protections as witnesses in proceedings of the High Court.
Clause 32:- Legal and financial assistance
28. This clause provides that legal and financial assistance can be granted where a witness
would experience financial hardship or where the circumstances of the case are of a nature that
requires it. An application to the Commission must be approved by the Joint Ministers.
Clause 33: Reimbursement of witness expenses
29. This clause provides that witnesses that are not representatives of a government are
entitled to reimbursement according to existing scales that operate in the High Court.
Clause 34: Commission may communicate information
30. This clause provides that the Commission is empowered to communicate to relevant
regulatory and law enforcement authorities any information regarding actual or potential illegal
acts where, in the Commission's view, it is appropriate to do so.
Clause 35: Funding
31. This clause provides that expenditure for the purposes of the Act is to be made from
funds appropriated by the Parliament.
Clause 36: Rules
32. This clause provides that the Minister may make rules to assist the functioning and
operation of the Commission of Inquiry. Limits on the Minister's powers are set out in subclause
36(2).
6
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Truth and Justice Commission Bill 2024
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act
2011.
Overview of the Bill
This Act establishes a Commission to inquire into and make recommendations to Parliament on
particular matters relating to historic and ongoing injustices against First Peoples in Australia
and the impacts of these injustices on First Peoples.
The Commission is to be known as the Truth and Justice Commission. The Commission is to be
constituted by 10 members consisting of one member from each State, the Australian Capital
Territory and the Northern Territory and 2 Chief Commissioners.
As the above explanatory memorandum states, the Commission will investigate 'the causes and
consequences of injustices, including a historical analysis of the impact of colonisation and an
evaluation of the contemporary relationship between First Peoples and the Commonwealth
Government and the impact of contemporary policies, practices, conduct and laws on First
Peoples'.
At its core, the Commission is intended to facilitate the kind of truth-telling that will advance the
human rights of First Nations people.
Human rights implications
This bill positively engages with, and advances, the right of First Nations people to be heard. By
actively engaging with Australia's history, and by thoroughly examining present practices, it is
hoped that an understanding of past and current wrongs will advance human rights across the
country.
Conclusion
The Bill is compatible with human rights because it seeks to create a Commission that will
uncover human rights abuses that have not been talked about sufficiently, let alone dealt with
legally. The Commission may also be able to advise Parliament on the best ways to legislate a
number of the rights of First Nations people as contained in the United Nations Declaration on
the Rights of Indigenous Peoples.
Senators Cox and Shoebridge
7