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A Bill for an Act to establish the Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill 2010
For authoritative information on the progress of bills and on amendments proposed to them, please see the House of Representatives Votes and Proceedings, and the Journals of the Senate as available on the Parliament House website.
Registered 23 Feb 2010
Introduced HR 22 Feb 2010

2008-2009-2010

 

The Parliament of the

Commonwealth of Australia

 

HOUSE OF REPRESENTATIVES

 

 

 

 

Presented and read a first time

 

 

 

 

 

 

Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill 2010

 

 

(Mr Kerr)

 

 

 

A Bill for an Act to establish the Parliamentary (Judicial Misbehaviour or Incapacity) Commission

 

 

  


Contents

Part 1—Preliminary                                                                                   1

1  Short title....................................................................................................... 1

2  Commencement............................................................................................. 1

3  Objects of Act............................................................................................... 2

4  Schedule(s).................................................................................................... 2

5  This Act binds the Crown............................................................................. 3

6  Definitions..................................................................................................... 3

7  Administration.............................................................................................. 4

Part 2—Establishment of the Commission                                               4

8  Establishment................................................................................................ 4

9  Members....................................................................................................... 4

10  Vacancy in membership.............................................................................. 5

Part 3—Administrative provisions                                                            5

11  Remuneration of members........................................................................... 5

12  Staff of the Commission.............................................................................. 6

13  Counsel assisting the Commission.............................................................. 6

14  Legal and financial assistance to justice....................................................... 6

15  Reimbursement of expenses of witnesses................................................... 7

16  Records of the Commission........................................................................ 7

Part 4—Functions and reports of the Commission                                   7

17  Functions..................................................................................................... 7

18  Decision of questions.................................................................................. 7

19  Reports........................................................................................................ 8

Part 5—Powers and proceedings of the Commission                               9

20  Conduct of proceedings............................................................................... 9

21  Power to summon witnesses and take evidence.......................................... 9

22  Search warrants......................................................................................... 10

23  Previous inquiries...................................................................................... 12

24  Hearings..................................................................................................... 12

25  Arrest of witness failing to appear............................................................ 13

26  Powers of Commission in relation to documents and other things........... 14

27  Standard of proof, admissibility of evidence and natural justice............... 15

28  Statements made and documents produced by witness not admissible in evidence against the witness    15

29  Protection of members, &c........................................................................ 16

Part 6—Offences                                                                                      16

30  Application of the Criminal Code............................................................ 16

31  Unauthorised presence at hearing or publication of evidence................... 16

32  Failure of witnesses to attend or produce documents............................... 17

33  Penalty for refusing to be sworn or to give evidence................................ 18

34  Acts or omissions on different days to constitute separate offences....... 18

35  Self-incrimination...................................................................................... 18

36  Excuse of other legislation......................................................................... 19

37  False or misleading evidence...................................................................... 19

38  Destroying documents or other things...................................................... 19

39  Injury to witness....................................................................................... 20

40  Dismissal by employers of witness.......................................................... 20

41  Preventing witnesses from attending or producing document................... 21

42  Bribery of witness..................................................................................... 21

43  Fraud on witness....................................................................................... 22

44  Commission may communicate information............................................. 23

45  Obstruction of Commission...................................................................... 24

Part 7—Miscellaneous                                                                             25

46  Regulations................................................................................................ 25

Schedule 1—Amendments to the Parliamentary Privileges Act 1987   26

 


A Bill for an Act to establish the Parliamentary (Judicial Misbehaviour or Incapacity) Commission

The Parliament of Australia enacts:

Part 1Preliminary

 

1  Short title

                   This Act may be cited as the Parliamentary (Judicial Misbehaviour or Incapacity) Commission Act 2010.

2  Commencement

             (1)  Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1.  Sections 1 and 2 and anything in this Act not elsewhere covered by this table

The day on which this Act receives the Royal Assent.

 

2.  Sections 5 to 46

By proclamation, provided that funds have been appropriated for the purposes of this Act.

However, if this does not occur within 6 months of this Act receiving the Royal Assent, the provisions do not commence at all.

 

Note:          This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.

             (2)  Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.

3  Objects of Act

                   The objects of this Act are to:

                     (a)  establish the Parliamentary (Judicial Misbehaviour or Incapacity) Commission; and

                     (b)  amend section 16 of the Parliamentary Privileges Act 1987.

4  Schedule(s)

                   Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

5  This Act binds the Crown

                   This Act binds the Crown in each of its capacities.

6  Definitions

             (1)  In this Act, unless the contrary intention appears:

Commission means the Parliamentary (Judicial Misbehaviour or Incapacity) Commission appointed in accordance with section 8;

document includes any book, register or other record of information, however compiled, recorded or stored;

incapacity has the same meaning as the word ‘incapacity’ in section 72 of the Constitution;

judge means a judge of a court created by the Parliament or of the Supreme Court of a State or Territory;

justice of a federal court means a Judge of the High Court or a judge or magistrate of a court created by the Parliament;

legal practitioner means a barrister, a solicitor, a barrister and solicitor, or a legal practitioner, of the High Court or of the Supreme Court of a State or Territory;

member means a member of the Commission;

misbehaviour has the same meaning as the word ‘misbehaviour’ in section 72 of the Constitution: and, subject to that provision, is not restricted to conduct which would constitute a criminal offence;

Presiding Member means the member of the Commission holding an appointment under subsection 9(4) or subsection 10(3);

reasonable excuse in relation to any act or omission by a witness or a person summoned as a witness before the Commission means, unless declared otherwise by this Act, an excuse which would excuse an act or omission of a similar nature by a witness or a person summoned as a witness before a court of law;

special circumstances scheme includes any arrangement for payment of financial assistance for legal costs and related expenses by the Commonwealth in special circumstances in cases not covered by extant statutory and non-statutory schemes.

7  Administration

                   The Attorney-General has the general administration of this Act.

Part 2Establishment of the Commission

8  Establishment

                   The Parliamentary (Judicial Misbehaviour or Incapacity) Commission is established by this section.

9  Members

      (1)  The Commission consists of three members; two of whom shall be appointed jointly by the President of the Senate and the Speaker of the House of Representatives on the recommendation of the Prime Minister, and one who shall be appointed jointly by the President of the Senate and the Speaker of the House of Representatives on the recommendation of the Leader of the Opposition.

             (2)  At least one member of the Commission shall be a retired judge of the High Court or of a court created by the Parliament, or a judge or retired judge of a Supreme Court of a State or Territory.

             (3)  A person shall not be appointed as a member if the person is a justice of a federal court.

             (4)  The Speaker and President shall  appoint jointly one of the members to be the Presiding Member.

10  Vacancy in membership

             (1)  If a member dies, becomes physically or mentally incapable of performing the functions of a member or, by notice in writing to the President of the Senate and the Speaker of the House of Representatives, resigns his or her appointment, the remaining members shall constitute the Commission until a replacement member is appointed, and this Act shall have effect as if subsection 9(1) required the appointment of 2 members.

             (2)  Whenever a vacancy in membership of the Commission occurs the Speaker and the President of the Senate, as soon as practicable, shall jointly appoint a replacement member. The requirements of subsections 9(1), 9(2) and 9(3) shall apply when appointments are made to fill any vacancy.

             (3)  If the Presiding Member dies, becomes physically or mentally incapable of performing the functions of a member or, by notice in writing to the President of the Senate and the Speaker of the House of Representatives, resigns his or her appointment, another member shall be appointed jointly by the President of the Senate and the Speaker of the House of Representatives to be the Presiding Member.

Part 3Administrative provisions

11  Remuneration of members

             (1)  A member of the Commission shall be entitled to an honorarium while a member.

             (2)  A member of the Commission shall be entitled to a daily payment while the Commission is considering a matter. For the purpose of this subsection the Commission shall be deemed to be considering a matter from the day it first meets after receiving a referral from a House of the Parliament until the day it submits its report on the matter.

             (3)  Payments to members in accordance with subsections (1) and (2) shall be as determined by the Remuneration Tribunal but, if no determination of that remuneration is in operation, the member shall be paid such remuneration as is prescribed.

             (4)  A member shall be paid such allowances as are prescribed.

             (5)  This section has effect subject to the Remuneration Tribunal Act 1973.

12  Staff of the Commission

             (1)  Subject to subsection (2), the staff of the Commission shall be persons made available to the Commission by the President of the Senate and the Speaker of the House of Representatives.

             (2)  The President of the Senate and the Speaker of the House of Representatives may arrange with the Secretary of a Department of the Australian Public Service for the services of officers or employees in the Department to be made available to the Commission.

             (3)  While a person is performing services for the Commission pursuant to an arrangement under this section, that person shall perform his or her functions and duties in accordance with the directions of the Presiding Member and not otherwise.

13  Counsel assisting the Commission

                   The Commission may appoint a legal practitioner to assist the Commission as counsel, either generally or in relation to a particular matter or matters.

14  Legal and financial assistance to justice

             (1)  A justice of a federal court who is the subject of inquiry by the Commission is entitled to make an application to the Attorney-General, under the special circumstances scheme, for the provision of assistance under this section in respect of the costs of his or her representation by a legal practitioner in relation to the inquiry.

             (2)  The Attorney-General shall comply with an application under subsection (1).

15  Reimbursement of expenses of witnesses

                   A witness appearing before the Commission shall be paid by the Commonwealth in respect of the expenses of the attendance of the witness an amount authorised in accordance with the prescribed scale or, if there is no prescribed scale, such amount as the Commission determines.

16  Records of the Commission

                   The Parliament is entitled to the possession of records kept by the Commission that are no longer required for the purposes of the Commission, and all such records shall be deemed to be records of the Parliament for the purposes of the Archives Act 1983.

Part 4Functions and reports of the Commission

17  Functions

             (1)  The Commission shall, in accordance with this section, inquire, and advise the Parliament, when a matter relating to a federal justice has been referred to it by a House of the Parliament, whether, in its opinion, facts amounting to proved misbehaviour or incapacity exist, as would warrant the removal of the justice from office by means of the provisions of section 72 of the Constitution.

             (2)  In carrying out its inquiry the Commission shall consider and give advice about only specific allegations made in precise terms contained in the matter referred by a House.

18  Decision of questions

             (1)  Questions arising before the Commission shall be decided in accordance with the opinion of a majority of the members.

             (2)  Where the members are not unanimous in opinion on a question arising before the Commission, the particulars of the opinions of each of the members on that question shall be recorded.

19  Reports

             (1)  When a matter has been referred to the Commission, and the Commission has inquired into the matter, the Commission shall report its findings on the matter to the Parliament as soon as practical. The report shall be delivered to the Speaker of the House of Representatives and to the President of the Senate.

             (2)  If the Commission concludes a report following the dissolution of one or both Houses, it shall deliver the report to the Speaker and President as soon as practical after the first sitting day of the House of Representatives of the following Parliament.

             (3)  The report shall be comprehensive and shall annexe a full transcript of the Commission’s proceedings. The report shall state the Commission’s advice to the Parliament required by section 17. The opinions of all Commissioners, including any dissenting opinion, shall be included in the report.

             (4)  Subject to subsection (6), the President of the Senate and the Speaker of the House of Representatives shall, as soon as practicable after they receive the report of the Commission and the record of evidence, cause copies of the report and record to be laid before the Senate and the House of Representatives.

             (5)  If the Commission is of the opinion that, if any of its findings or conclusions, or any of the evidence given before the Commission were to be laid before the Houses of the Parliament:

                     (a)  a person who has been or may be charged with an offence may not receive a fair trial for the offence;

                     (b)  the conduct of an investigation of a breach or possible breach, of the law, may be prejudiced;

                     (c)  the existence or identity of a confidential source of information in relation to the enforcement or administration of the law may be disclosed or a person enabled to ascertain the existence or identity of that source; or

                     (d)  there may be prejudice to the safety of a person;

the Commission may include those findings or conclusions, or that evidence, in a separate report and deliver the report to the President of the Senate and the Speaker of the House of Representatives, together with a statement of its opinion.

             (6)  Where a separate report is prepared in accordance with subsection (5), the President of the Senate and the Speaker of the House of Representatives shall cause that separate report to be made available for inspection by Members of the Parliament and by the justice who is the subject of the inquiry by the Commission; but the matters referred to in the report must not be otherwise published except as may be specifically authorised by the resolution of a House.

Part 5Powers and proceedings of the Commission

20  Conduct of proceedings

             (1)  The Commission shall, unless it thinks the circumstances require otherwise, conduct the whole of its inquiry in public, but the Commission may, when in its opinion the interests of justice require, direct that part or all of its proceedings be conducted in private.

             (2)  The Commission shall conduct its inquiry as quickly as a proper consideration of the matters before the Commission will permit.

21  Power to summon witnesses and take evidence

             (1)  A member of the Commission may summon a person to appear before the Commission at a hearing to do either or both of the following:

                     (a)  to give evidence;

                     (b)  to produce the documents, or other things, specified in the summons.

             (2)  The Presiding Member may require a person appearing at the hearing to produce a document or other thing.

             (3)  The Commission may, at a hearing, take evidence on oath or affirmation and for that purpose:

                     (a)  a member of the Commission may require a person appearing at the hearing to give evidence either to take an oath or to make an affirmation in a form approved by the member of the Commission presiding at the hearing; and

                     (b)  a member of the Commission, or a person who is an authorized person in relation to the Commission, may administer an oath or affirmation to a person so appearing at the hearing.

             (4)  A member of the Commission may, by written notice served (as prescribed) on a person, require the person to produce a document or thing specified in the notice to a person, and at the time and place, specified in the notice.

             (5)  In this section, a reference to a person who is an authorized person in relation to the Commission is a reference to a person authorized in writing, or a person included in a class of persons authorized in writing, for the purposes of this section by the Presiding Member.

             (6)  No person, including a justice of a federal court the subject of inquiry under section 17, has the right to give evidence to the Commission by way of an unsworn statement.

22  Search warrants

             (1)  Where:

                     (a)  the Commission has reasonable grounds for suspecting that there may be, at that time or within the next following 24 hours, upon any land or upon or in any premises, vessel, aircraft or vehicle, a thing or things of a particular kind connected with the matter into which the Commission is inquiring (in this section referred to as “things of the relevant kind”); and

                     (b)  the Commission believes on reasonable grounds that, if a summons were not issued for the production of the thing or things, a thing or things might be concealed, lost, mutilated or destroyed, the Commission may issue a search warrant.

             (2)  A reference in subsection (1) to the Commission includes a reference to a member authorised by the Commission to act under that subsection.

             (3)  A search warrant issued under subsection (1) shall authorise a member of the Australian Federal Police or of the Police Force of a State or of the Northern Territory or any other person, named in the warrant, with such assistance as that member or person thinks necessary and if necessary by force:

                     (a)  to enter upon the land or upon or into the premises, vessel, aircraft or vehicle;

                     (b)  to search the land, premises, vessel, aircraft or vehicle for things of the relevant kind; and

                     (c)  to seize any things of the relevant kind found upon the land or upon or in the premises, vessel, aircraft or vehicle and deliver things so seized to the Commission.

             (4)  There shall be stated in a warrant issued under this section:

                     (a)  a statement of the purpose for which the warrant is issued, which shall include a reference to the matter into which the Commission is inquiring and with which the things of the relevant kind are connected;

                     (b)  whether entry is authorized to be made at any time of the day or night or during specified hours of the day or night;

                     (c)  a description of the kind of things authorized to be seized; and

                     (d)  a date, not being later than one month after the date of issue of the warrant, upon which the warrant ceases to have effect.

             (5)  If, in the course of searching, in accordance with a warrant issued under this section, for things of a particular kind connected with a matter into which the Commission is inquiring, the person executing the warrant finds:

                     (a)  any thing of another kind that he or she believes on reasonable grounds to be connected with that matter; or

                     (b)  any thing that he or she believes on reasonable grounds to be connected with another matter into which the relevant Commission is inquiring;

and he or she believes on reasonable grounds that it is necessary to seize that thing in order to prevent its concealment, loss, mutilation or destruction, the warrant shall be deemed to authorize the person to seize that thing.

             (6)  In this section, thing includes a document.

23  Previous inquiries

                   In considering any allegation, the Commission shall have regard to the outcome of any previous official inquiry into that allegation, and consider it to the extent that the Commission believes it necessary or desirable to do so, and shall not be precluded by any other law or by any privileges of either House of the Parliament from obtaining access to the records of evidence given at, or findings made as a result of, such an inquiry.

24  Hearings

             (1)  For the purposes of its inquiry the Commission may hold hearings.

             (2)  Hearings before the Commission may be held at such places within Australia as the Commission determines.

             (3)  The Presiding Member shall preside at a hearing before the Commission.

             (4)  At a hearing before the Commission, a justice of a federal court who is the subject of inquiry by the Commission is entitled to appear, and to be represented by a legal practitioner, at any time during the hearing.

             (5)  Subject to subsection (4), in relation to such of the proceedings before the Commission as may be conducted in private, the Commission may give directions as to the persons who may be present and whether such a person may be represented by a legal practitioner.

             (6)  Nothing in this Act prevents the presence, when evidence is being taken at a hearing, of a person representing the person giving evidence or representing a person who, by reason of a direction given by the Commission under subsection (5), is entitled to be present.

             (7)  Where the Commission conducts some part of a hearing in private, a person (other than a member, counsel assisting the Commission or a member of the staff of the Commission approved by the Commission) shall not be present at that hearing unless the person is entitled to be present by virtue of a direction under subsection (5) or by virtue of subsection (6).

             (8)  At a hearing before the Commission:

                     (a)  counsel assisting the Commission;

                     (b)  any person authorised by the Commission or entitled to appear before it at the hearing; or

                     (c)  any legal practitioner authorised by the Commission to appear before it for the purpose of representing a person at the hearing pursuant to subsection (4), may, so far as the Commission thinks appropriate, examine or cross-examine any witness on any matter that the Commission considers relevant to its inquiry.

             (9)  Subject to this Act, the procedure at a hearing before the Commission shall be such as the Commission directs.

           (10)  The Commission may give directions that:

                     (a)  evidence given before the Commission;

                     (b)  the contents of a document, or a description of a thing, produced to the Commission or seized pursuant to a warrant issued under section 22;

                     (c)  any information that might enable a person who has given evidence before the Commission to be identified; or

                     (d)  the fact that any person has given or may be about to give evidence at a hearing;

shall not be published, and  the Commission shall  give such a direction if  not to do so might prejudice the safety  of a person or prejudice the fair trial of a person who has been or may be charged with an offence.

25  Arrest of witness failing to appear

             (1)  If any person served with a summons to attend the Commission as a witness fails to attend the Commission in answer to the summons, the Presiding Member may, on proof by statutory declaration of the service of the summons, issue a warrant for the person’s apprehension.

             (2)  The warrant shall authorize the apprehension of the witness and the witness being brought before the Commission, and the witness’ detention in custody for that purpose until he or she is released by order of the Presiding Member.

             (3)  The warrant may be executed by any member of the Australian Federal Police or of the Police Force of a State or of the Northern Territory, or by any person to whom it is addressed, and the person executing it shall have power to break and enter any place building or vessel for the purpose of executing it.

             (4)  The apprehension of any witness under this section shall not relieve him or her from any liability incurred by the witness by reason of his or her non‑compliance with the summons.

26  Powers of Commission in relation to documents and other things

             (1)  The Commission, a member or a person who is an authorised person in relation to the Commission may:

                     (a)  inspect any documents or other things produced before, or delivered to, the Commission;

                     (b)  retain the documents or other things for so long as is reasonably necessary for the purposes of the Commission's inquiry; and

                     (c)  in the case of documents produced before, or delivered to, the Commission, make copies of matter contained in the documents, being matter that is relevant to the Commission's inquiry.

             (2)  Where the retention of a document or other thing by the Commission ceases to be reasonably necessary for the purposes of the Commission’s inquiry, the Commission shall, if a person who appears to the Commission to be entitled to the document or other thing so requests, cause the document or other thing to be delivered to that person.

             (3)  In subsection (1), a reference to a person who is an authorised person in relation to the Commission is a reference to a person authorised in writing, for the purposes of that subsection, by the Presiding Member.

27  Standard of proof, admissibility of evidence and natural justice

             (1)  Except as otherwise provided by this Act, in any proceeding the Commission is to find that the facts necessary for deciding any question arising under this Act have been proved if it is satisfied that they have been proved on the balance of probabilities.

             (2)  In determining whether it is so satisfied, the matters that the Commission shall take into account include:

                     (a)  the importance of the evidence in the proceeding; and

                     (b)  the gravity of the matters alleged in relation to the question.

Note:          This provision means that, while the criminal standard of proof shall not apply, the more serious the allegation being considered is, the higher must be the standard of proof.

             (3)  The Commission is not bound by rules of evidence and may be informed on any matter in issue in any manner that it considers appropriate.

             (4)  The Commission shall act in accordance with the rules of natural justice.

28  Statements made and documents produced by witness not admissible in evidence against the witness

             (1)  The following are not admissible in evidence against a natural person in any civil or criminal proceedings in any court of the Commonwealth, of a State or of a Territory:

                     (a)  a statement or disclosure made by the person in the course of giving evidence before a Commission;

                     (b)  the production of a document or other thing by the person pursuant to a summons, requirement or notice under section 21 or section 32.

             (2)  Subsection (1) does not apply to the admissibility of evidence in proceedings for an offence against this Act.

             (3)  For the removal of doubt, proceedings in the Parliament for the purposes of section 72 of the Constitution are not proceedings in a court for the purposes of subsection (1).

29  Protection of members, &c.

             (1)  A member has, in the performance of the functions or the exercise of the powers of a member, the same protection and immunity that a Member of Parliament has in relation to the performance of the functions or the exercise of the powers of a committee of the Parliament.

             (2)  Subject to this Act, a person summoned to attend or appearing before the Commission as a witness has the same protection as a witness before a committee of the Parliament.

             (3)  A legal practitioner assisting the Commission or representing a person at a hearing before the Commission has the same protection and immunity as a legal practitioner has when performing the same function in relation to a committee of the Parliament.

             (4)  Proceedings of the Commission shall be considered to be proceedings in Parliament, and evidence before the Commission considered to be evidence before a committee of the Parliament, for the purposes of subsections 16(3), 16(3A) and 16(4) of the Parliamentary Privileges Act 1987, as amended by this Act.

Part 6Offences

30  Application of the Criminal Code

                   Chapter 2 of the Criminal Code applies to all offences against this Act.

Note:          Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

31  Unauthorised presence at hearing or publication of evidence

                   A person who:

                     (a)  is present at a hearing in contravention of subsection 24(7); or

                     (b)  makes a publication in contravention of subsection 24(10) or subsection 19(6);

is guilty of an offence punishable, on summary conviction, by a fine not exceeding 1,000 penalty units or imprisonment for a period not exceeding 6 months.

32  Failure of witnesses to attend or produce documents

             (1)  A person served, as prescribed, with a summons to appear as a witness at a hearing before the Commission shall not:

                     (a)  fail to attend as required by the summons; or

                     (b)  fail to attend from day to day unless excused, or released from further attendance, by a member of the Commission.

Penalty:  1,000 penalty units or imprisonment for 6 months.

             (2)  Subsection (1) does not apply if the person has a reasonable excuse.

             (3)  A person appearing as a witness at a hearing before the Commission shall not fail to produce a document or other thing that the person was required to produce by a summons under this Act served on him or her as prescribed or that the person was required to produce by the member of the Commission presiding at the hearing.

Penalty:  1,000 penalty units or imprisonment for 6 months.

             (4)  Subsection (3) does not apply if the person has a reasonable excuse.

             (5)  It is a defence to a prosecution for an offence against subsection (3) constituted by a failure to produce a document or other thing to a Commission if the document or other thing was not relevant to the matters into which the Commission was inquiring.

Note:          A defendant bears an evidential burden in relation to the matters in subsections (2), (4) and (5) (see subsection 13.3(3) of the Criminal Code).

             (6)  A person served with a notice under subsection 21(4) must not refuse or fail to produce a document or other thing that the person was required to produce in accordance with the notice.

Penalty:  1,000 penalty units or imprisonment for 6 months.

             (7)  Subsection (6) does not apply if the person has a reasonable excuse.

             (8)  It is a defence to a prosecution for an offence against subsection (6) constituted by a refusal or failure to produce a document or other thing if the document or other thing was not relevant to the matters into which the Commission was inquiring.

Note:          A defendant bears an evidential burden in relation to the matters in subsections (7) and (8) (see subsection 13.3(3) of the Criminal Code).

33  Penalty for refusing to be sworn or to give evidence

             (1)  If any person appearing as a witness before the Commission refuses to be sworn or to make an affirmation or to answer any question relevant to the inquiry put to him or her by any member, the person shall be guilty of an offence.

             (2)  The penalty for an offence under subsection (1) is a fine not exceeding 1,000 penalty units or imprisonment for a period not exceeding 6 months.

34  Acts or omissions on different days to constitute separate offences

                   Where any person has on any day done or omitted to do something, and the person’s act or omission amounts to an offence against section 31, 32 or 33, and does or omits to do the same thing at any meeting of the Commission held on some other day, each such act or omission shall be a separate offence.

35  Self-incrimination

                   It is not a reasonable excuse for the purposes of section 32 for a person to refuse or fail to produce a document or thing or not answer any question in relation to such refusal on the grounds that the production of the same might incriminate them or expose them to a penalty.

Note:          Section 28 protects witnesses against self incrimination in proceedings outside the Commission.

36  Excuse of other legislation

             (1)  It is not a reasonable excuse for the purposes of section 32 for a person to refuse or fail to produce a document or other thing that the person was required to produce at a hearing before the Commission that the answering of the question or the production of the document or thing is prohibited by or under any Act.

             (2)  A person is not entitled to refuse or fail to answer a question that the person is required to answer by the Presiding Member on the ground that the answer to the question is prohibited by or under any Act.

             (3)  The answering of a question or the production of a document or thing, when required by the Commission, does not constitute a breach of a provision made by or under any Act prohibiting the disclosure of information of a kind contained in that answer, document or thing.

37  False or misleading evidence

             (1)  A person shall not, at a hearing before the Commission, give evidence that is to the knowledge of the person false or misleading with respect to any matter, being a matter that is material to the inquiry being made by the Commission.

             (2)  A contravention of subsection (1) is an indictable offence and, subject to this section, is punishable by a fine not exceeding 5,000 penalty units or by imprisonment for a period not exceeding 5 years.

38  Destroying documents or other things

             (1)  A person commits an offence if:

                     (a)  the person acts or omits to act; and

                     (b)  the act or omission results in a document or other thing being:

                              (i)  concealed, mutilated or destroyed; or

                             (ii)  rendered incapable of identification; or

                            (iii)  in the case of a document, rendered illegible or indecipherable; and

                     (c)  the person knows, or is reckless as to whether, the document or thing is one that:

                              (i)  is or may be required in evidence before the Commission; or

                             (ii)  a person has been, or is likely to be, required to produce pursuant to a summons, requirement or notice under section 21.

             (2)  An offence under subsection (1) is an indictable offence and, subject to this section, is punishable on conviction by imprisonment for a period not exceeding 2 years or by a fine not exceeding 2,000 penalty units.

39  Injury to witness

             (1)  Any person who uses, causes or inflicts, any violence, punishment, damage, loss, or disadvantage to any person for or on account of:

                     (a)  the person having appeared as a witness before the Commission; or

                     (b)  any evidence given by him or her before the Commission; or

                     (c)  the person having produced a document or thing pursuant to a summons, requirement or notice under section 21;

is guilty of an indictable offence.

Penalty:  1,000 penalty units, or imprisonment for 12 months.

             (2)  Nothing in this section applies to, or in relation to, anything done by a person under, or for the purposes of, section 72 of the Constitution.

40  Dismissal by employers of witness

             (1)  Any employer who dismisses any employee from his or her employment, or prejudices any employee in his or her employment, for or on account of the employee having:

                     (a)  appeared as a witness before the Commission; or

                     (b)  given evidence before the Commission; or

                     (c)  produced a document or thing pursuant to a summons, requirement or notice under section 21;

is guilty of an indictable offence.

Penalty:  1,000 penalty units, or imprisonment for 12 months.

             (2)  Subsection (1) does not apply if the employee was dismissed or prejudiced in his or her employment for some reason other than the reasons mentioned in subsection (1).

             (3)  Nothing in this section applies to, or in relation to, anything done by a person under, or for the purposes of, section 72 of the Constitution.

Note:          A defendant bears an evidential burden in relation to the matters in subsection (2) (see subsection 13.3(3) of the Criminal Code).

41  Preventing witnesses from attending or producing document

             (1)  Any person who intentionally prevents any person who has been summoned to attend as a witness before the Commission from attending as a witness or from producing anything in evidence pursuant to the summons to attend shall be guilty of an indictable offence.

Penalty:  1,000 penalty units, or imprisonment for 12 months.

             (2)  Any person who intentionally prevents any person who is required to produce a document or other thing pursuant to a notice under subsection 21(4) from producing that document or thing in accordance with the notice is guilty of an indictable offence.

Penalty:  1,000 penalty units, or imprisonment for 12 months.

42  Bribery of witness

             (1)  A person who:

                     (a)  gives, confers, or procures, or promises or offers to give or confer, or to procure or attempt to procure, any property or benefit of any kind to, upon, or for, any person, upon any agreement or understanding that any person called or to be called as a witness before the Commission shall give false testimony or withhold true testimony; or

                     (b)  attempts by any means to induce a person called or to be called as a witness before the Commission to give false testimony, or to withhold true testimony; or

                     (c)  asks, receives or obtains, or agrees to receive or obtain any property or benefit of any kind for himself, or any other person, upon any agreement or understanding that any person shall as a witness before the Commission give false testimony or withhold true testimony;

shall be guilty of an indictable offence.

Penalty:  5,000 penalty units, or imprisonment for five years.

             (2)  Any person who:

                     (a)  gives, confers, or procures, or promises or offers to give or confer, or to procure or attempt to procure, any property or benefit of any kind to, upon, or for, any person, upon any agreement or understanding that any person who is required to produce a document or other thing pursuant to a summons, requirement or notice under section 21 will not comply with the requirement; or

                     (b)  attempts by any means to induce any person who is required to produce a document or other thing pursuant to a summons, requirement or notice under section 21 not to comply with the requirement; or

                     (c)  asks, receives or obtains, or agrees to receive or obtain any property or benefit of any kind for himself, or any other person, upon any agreement or understanding that any person who is required to produce a document or other thing pursuant to a summons, requirement or notice under section 21 will not comply with the requirement;

is guilty of an indictable offence.

Penalty:  5,000 penalty units, or imprisonment for 5 years.

43  Fraud on witness

             (1)  Any person who practises any fraud or deceit, or intentionally makes or exhibits any statement, representation, token, or writing, knowing it to be false, to any person called or to be called as a witness before the Commission with intent to affect the testimony of that person as a witness, shall be guilty of an indictable offence.

Penalty:  2,000 penalty units, or imprisonment for 2 years.

             (2)  Any person who practises any fraud or deceit, or intentionally makes or exhibits any statement, representation, token, or writing, knowing it to be false, to any person with intent that any person who is required to produce a document or other thing pursuant to a summons, requirement or notice under section 21 will not comply with the requirement, is guilty of an indictable offence.

Penalty:  2,000 penalty units, or imprisonment for 2 years.

44  Commission may communicate information

             (1)  Where, in the course of inquiring into a matter, the Commission obtains information that relates, or that may relate, to a contravention of a law, or evidence of a contravention of a law, of the Commonwealth, of a State or of a Territory, the Commission may, if in the opinion of the Commission it is appropriate so to do, communicate the information or furnish the evidence, as the case may be, to:

                     (a)  the Attorney‑General of the Commonwealth, of a State, of the Australian Capital Territory or of the Northern Territory; or

                     (b)  the Director of Public Prosecutions; or

                     (c)  a Special Prosecutor appointed under the Special Prosecutors Act 1982; or

                     (d)  the Commissioner of the Australian Federal Police or of the Police Force of a State or of the Northern Territory; or

                     (e)  the authority or person responsible for the administration or enforcement of that law.

             (2)  A reference in subsection (1) to a contravention of a law is a reference to a contravention for which a person may be liable to:

                     (a)  a criminal penalty; or

                     (b)  a civil or administrative penalty.

             (3)  Where, in the course of inquiring into a matter, the Commission:

                     (a)  obtains information;

                     (b)  takes evidence; or

                     (c)  receives a document or thing;

that, in the opinion of the Commission, relates or may relate to a matter into which a Royal Commission is required or authorized to inquire, the Commission may, if in its opinion it is appropriate so to do, communicate the information or furnish the evidence, document or thing, as the case may be, to the Royal Commission.

             (4)  Where, in the course of inquiry into a matter, the Commission:

                     (a)  obtains information;

                     (b)  takes evidence; or

                     (c)  receives a document or thing;

that, in the opinion of the Commission, relates or may relate to the performance of the functions of the Australian Crime Commission, the Commission may, if in its opinion it is appropriate so to do, communicate the information or furnish the evidence, document or thing, as the case may be, to the Chief Executive Officer of the Australian Crime Commission.

             (5)  A reference in subsection (3) or (4) to the furnishing of a document or thing includes a reference to the furnishing of the contents of the document or a description of the thing.

45  Obstruction of Commission

                   Any person who intentionally insults or disturbs the Commission, or interrupts the proceedings of the Commission, or uses any insulting language towards the Commission, or by writing or speech uses words false and defamatory of the Commission, or is in any manner guilty of any intentional contempt of the Commission, shall be guilty of an offence.

Penalty:  100 penalty units or imprisonment for three months.

Part 7Miscellaneous

46  Regulations

                   The Governor-General may make regulations, not inconsistent with this Act, prescribing matters:

                     (a)  required or permitted by this Act to be prescribed; or

                     (b)  necessary or convenient to be prescribed for carrying out or giving effect to this Act.


Schedule 1Amendments to the Parliamentary Privileges Act 1987

   

1  Subsection 16(3)

Omit:

“In”, substitute

“Subject to this section, in”

2  After Subsection 16(3)

Insert:

        “(3A)  If:

                     (a)  a person (the ‘witness’) gives evidence against another person in a court or tribunal; and

                     (b)  the witness had previously made a statement in evidence before a House or a committee; and

                     (c)  that statement is not consistent with the evidence given by the witness in the court or tribunal; the other person may test the credibility of the witness by questioning the witness with regard to that statement.”.