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Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill 2012

Part 2 Establishment, functions and membership etc. of Commissions

   

8   Guide to this Part

The Houses of the Parliament may each pass a resolution, in the same session, establishing a Commission to investigate an allegation of misbehaviour or incapacity of a Commonwealth judicial officer.

The Commission is to investigate the allegation, and report to the Houses of the Parliament, on whether there is evidence that would let the Houses of the Parliament conclude that the alleged misbehaviour or incapacity is proved.

If the alleged misbehaviour or incapacity is proved, and both Houses of the Parliament pray for the removal of the judicial officer, the judicial officer may be removed by the Governor-General in Council in accordance with paragraph 72(ii) of the Constitution.

A Commission is to consist of 3 members, who are nominated by the Prime Minister after consulting with the Leader of the Opposition.

9   Establishment

             (1)  A Commission is established by force ofthis section if each House of the Parliament passes, in the same session, a resolution that a Commission be established by this Act to investigate a specified allegation of misbehaviour or incapacity of a specified Commonwealth judicial officer.

Note 1:       A separate Commission is established each time the Houses of the Parliament pass a resolution in relation to a specified allegation.

Note 2:       A Commission might be established to investigate more than one allegation of misbehaviour or incapacity of a specified Commonwealth judicial officer (see paragraph 23(b) of the Acts Interpretation Act 1901 ).

             (2)  To avoid doubt, such a Commission may be established on or after this section commences to investigate and report in respect of misbehaviour or incapacity that is alleged to have occurred, or begun, before, on or after this section commences.

10   Functions

                   The functions of a Commission are:

                     (a)  to investigate an allegation referred to in section 9; and

                     (b)  to report to the Houses of the Parliament the Commission’s opinion of whether or not there is evidence that would let the Houses of the Parliament conclude that the alleged misbehaviour or incapacity is proved.

11   Powers

                   A Commission has power to do all things necessary or convenient to be done for or in connection with the performance of its functions.

12   Commission has privileges and immunities of the Crown

                   A Commission has the privileges and immunities of the Crown in right of the Commonwealth.

13   Membership

             (1)  A Commission consists of 3 members appointed on the nomination of the Prime Minister.

             (2)  Before nominating a member, the Prime Minister must consult with the Leader of the Opposition in the House of Representatives.

             (3)  At least one member of each Commission must be:

                     (a)  a former Commonwealth judicial officer; or

                     (b)  a judge, or former judge, of the Supreme Court of a State or Territory.

14   Appointment of members

             (1)  A member is appointed by force of this subsection if each House of the Parliament passes, in the same session, a resolution to appoint the member.

             (2)  A person must not be appointed if he or she is a Commonwealth judicial officer.

             (3)  A member is by force of this subsection appointed as the presiding member if:

                     (a)  the Prime Minister nominates the member to be the presiding member; and

                     (b)  each House of the Parliament passes, in the same session, a resolution to appoint the member as the presiding member.

             (4)  A member is appointed on a part-time basis.

15   Vacancy in membership

                   If at any time a Commission is not properly constituted in accordance with the requirements of section 13 because one or more members have ceased to be a member then, despite section 13:

                     (a)  the Commission continues in existence (even if there are no remaining members); and

                     (b)  the Commission consists of the remaining members (if any); and

                     (c)  the provisions of this Act (other than this section) have effect, at that time, as if the Commission were properly constituted in accordance with the requirements of section 13; and

                     (d)  the Houses of the Parliament must, as soon as practicable after that time, each pass a resolution to appoint replacement members, in accordance with the requirements of sections 13 and 14.

16   When a Commission ceases to exist

             (1)  The parliamentary presiding officers may jointly determine, in writing, that a Commission is to cease to exist if the officers are satisfied that:

                     (a)  the Commission’s functions have been performed; or

                     (b)  the person in relation to whom an allegation of misbehaviour or incapacity is being investigated by the Commission has ceased to be a Commonwealth judicial officer (due to retirement, resignation, death or any other reason).

             (2)  The Commission ceases to exist at the time specified in the determination.

             (3)  A determination made under subsection (1) is not a legislative instrument.