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- Part 1—Preliminary
of Inquiry into the Home Insulation Program
- Division 1—Establishment and functions of the Commission
- Division 2—Powers of the Commission
- 9 Hearings
- 10 Publication
- 11 Counsel assisting the Commission
- 12 Power to summon witnesses and take evidence
- 13 Exception to privilege for Cabinet documents
- 14 Self-incrimination
- 15 Statement made by witness not admissible in evidence
- 16 Arrest of witness failing to appear
- 17 Search warrants
- 18 Powers of Commission in relation to documents and other things
- Part 3—Offences
- Part 4—Operation of the Commission
Content WindowHome Insulation Program (Commission of Inquiry) Bill 2011
Part 2 — Commission of Inquiry into the Home Insulation Program
Division 1 — Establishment and functions of the Commission
(1) A Commission is established by this subsection, to be known as the Commission of Inquiry into the Home Insulation Program.
(2) The Commission is constituted by a Commissioner appointed for this subsection by a resolution of each House of the Parliament.
(3) A person is not eligible for appointment as Commissioner unless the person is or has been a Judge.
(1) The Commission is to inquire and advise the Parliament on:
(a) what warnings and advice on the Home Insulation Program were received by Ministers (whether directly or through agencies) from any of the following:
(ii) Commonwealth agencies;
(iii) State and Territory agencies;
(v) members of the public; and
(b) any decisions by a Minister, or Ministers, to reject such warnings or advice.
Actions by agencies
(2) The Commission is to inquire and advise the Parliament on:
(a) what the Home Insulation Program required of:
(i) Commonwealth officers and agencies; and
(ii) State and Territory governments and agencies; and
including informal requirements as well as those expressed in protocols, guidelines, procedures, conditions and timetables; and
(b) whether those requirements were adequate to ensure that:
(i) they would be complied with; and
(ii) appropriate standards of quality and safety would be met; and
(ii) the Program would achieve value for money; and
(ii) State and Territory agencies;
(iv) members of the public; and
(d) any decisions by agencies to:
(i) reject such warnings or advice; or
(ii) advise Ministers to reject such warnings or advice; and
(e) how the Program’s requirements were applied in practice and, in particular, what was the response of the Commonwealth to such warnings or advice; and
(f) whether all relevant Commonwealth procurement and other guidelines and procedures were complied with.
(3) The Commission is to inquire and advise the Parliament on whether and to what extent any decisions or omissions by Ministers or agencies caused or contributed to the loss of lives, loss of property, incidence of fraud and incidence of fire under the Home Insulation Program.
(1) The Commission must submit to the President and the Speaker a report containing:
(a) its findings of fact; and
(b) any recommendations relevant to the inquiry that the Commissioner thinks fit.
(3) The Commission must submit with its report a record of so much of the evidence before the Commission as the Commissioner thinks necessary to substantiate its findings of fact and its conclusions.
(4) 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 might not receive a fair trial for the offence; or
(b) the conduct of an investigation of a breach or possible breach of the law, might be prejudiced; or
(c) the existence or identity of a confidential source of information in relation to the enforcement or administration of the law might be disclosed or a person enabled to ascertain the existence or identity of that source; or
(d) there might be prejudice to the safety or reputation of a person;
the Commission may submit those findings or conclusions, or that evidence, to the President and the Speaker in a separate report, together with a statement of its opinion.
(5) As soon as practicable after receiving the report and record of evidence, the President and the Speaker must cause copies of the report and record, other than a separate report submitted under subsection (4), to be laid before the Senate and the House of Representatives.
Division 2 — Powers of the Commission
(1) For the purposes of its inquiry the Commission may hold hearings at places in Australia determined by the Commission.
(2) A hearing is to be public unless the Commissioner decides that the circumstances require the hearing, or part of the hearing, to be held in private.
(3) A hearing may be recorded or broadcast by media representatives in a manner determined by the Commissioner, unless the Commissioner decides that the circumstances require that the hearing, or part of the hearing, should not be broadcast or recorded.
(4) A person who appears before the Commission, or who is or is likely to be affected by evidence given before the Commission, may be represented by a legal practitioner.
(5) If a hearing is to be conducted in private, the only persons who may be present are persons authorised by the Commissioner and legal practitioners representing them.
(6) Subject to this Act, a hearing may be conducted as the Commissioner thinks fit.
(7) The Commission must make a record of a hearing.
(1) The following must not be published except in accordance with a direction of the Commissioner:
(a) evidence given before the Commission;
(c) any information that might enable a person who has given evidence before the Commission to be identified;
(d) the fact that any person has given or may be about to give evidence at a hearing.
(2) The Commissioner must not give a direction to publish such material if to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been or might be charged with an offence.
The Commission may appoint a legal practitioner to assist the Commission as counsel, either generally or in relation to a particular matter or matters.
(1) The Commissioner may, by a written summons signed by the Commissioner and served on a person, summon the person to attend a hearing at a time and place specified in the summons:
(a) to give evidence; or
(b) to produce documents or things specified in the summons.
(2) At a hearing, the Commissioner may:
(a) require a witness either to take an oath or to make an affirmation; and
(b) administer the oath or affirmation to the witness.
(3) At a hearing, the following persons may, so far as the Commissioner thinks appropriate, examine or cross--examine any witness on any matter that the Commissioner considers relevant:
(a) counsel assisting the Commissioner;
(b) a person summoned or otherwise authorised to appear before the Commissioner;
(c) a legal practitioner representing a person authorised to appear before the Commissioner.
(4) The Commissioner may require a witness to answer any question that the Commissioner considers relevant.
(1) This section applies if a person who is required to produce a document under paragraph 12(1)(b) claims that the document is privileged from production on the ground that:
(a) it is, or relates to, a document that was brought into existence for the dominant purpose of submission for consideration by the Cabinet; or
(b) its disclosure would involve the dislosure of a deliberation or decision of the Cabinet.
(2) If the Commissioner determines that the document, or a portion of it, is relevant to the inquiry, then even if, apart from this section, the document would be privileged from production on that ground, the Commissioner may order that the document, or the relevant portion, be:
(a) disclosed to the persons specified by the Commissioner; or
(b) entered into the record of the inquiry;
as appropriate to fulfil the purpose of the inquiry.
(1) A person is not excused from producing a document or other thing under paragraph 12(1)(b) on the ground that the document or other thing might tend to incriminate the person or expose the person to a penalty.
(2) A person is not excused from answering a question under subsection 12(4) on the ground that the answer to the question might tend to incriminate the person or expose the person to a penalty.
The following are not admissible in evidence in any civil or criminal proceedings, except in proceedings for an offence against this Act:
(a) a statement or disclosure made, or a document or thing produced, by a witness in the course of giving evidence before the Commission;
(b) any information, document or thing obtained as a direct or indirect consequence of the statement or disclosure or the production of the document or thing.
(1) If a person served with a summons to attend before the Commission as a witness fails to attend in accordance with the summons, the Commissioner may, on proof of the service of the summons, issue a warrant to arrest the person.
(2) A warrant authorises the arrest of the witness, the bringing of the witness before the Commission and the detention of the witness in custody for that purpose until the witness is released by order of the Commissioner.
(3) A warrant may be executed by any member of the Australian Federal Police or of the police force of a State or Territory, and the person executing the warrant has power to break and enter any place, building or vessel in order execute it.
(4) The arrest of the witness under this section does not relieve the witness from any liability incurred by reason of non--compliance with the summons.
(1) The Commissioner may issue a search warrant if:
(a) the Commissioner has reasonable grounds for suspecting that there may be relevant material, at that time or within the next 24 hours, upon any land or upon or in any premises, vessel, aircraft or vehicle; and
(b) the Commissioner believes on reasonable grounds that, if a summons were issued for the production of the material, it might be concealed, lost, mutilated or destroyed.
(3) A search warrant authorises a member of the Australian Federal Police or of the Police Force of a State or Territory, in accordance with its terms:
(a) to enter upon the land or upon or into the premises, vessel, aircraft or vehicle; and
(b) to search the land, premises, vessel, aircraft or vehicle for relevant material; and
(c) to seize any relevant items found upon the land or upon or in the premises, vessel, aircraft or vehicle and deliver things seized to the Commission; and
(d) to make copies or extracts, including electronic copies or extracts, of any relevant documents found.
(4) A search warrant must:
(a) state the purpose for which the warrant is issued; and
(b) state whether entry is authorised to be made at any time of the day or night; and
(c) include a description of the kinds of things authorised to be seized; and
(d) specify a day, not later than one month after the date of issue of the warrant, at the expiration of which the warrant ceases to have effect.
(5) If, in the course of searching for relevant material in accordance with a search warrant, the person executing the warrant finds any other thing that the person believes on reasonable grounds to be connected with that material and the person believes on reasonable grounds that it is necessary to seize that thing in order to prevent its concealment, loss, mutilation or destruction, the warrant authorises the person to seize that thing.
(6) For this section, material or a document is relevant if it has evidential value relevant to the Commission’s inquiry.
(1) The Commission, or a person authorised in writing by the Commissioner, may:
(a) inspect any documents or other things produced before, or delivered to, the Commission; and
(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 relevant to the Commission’s inquiry.
(2) Where a document or other thing is no longer needed by the Commission for its inquiry, the Commission is to return the document or thing to the person who appears to be entitled to it, or deal with it at that person’s direction.