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Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill 2010

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2008-2009-2010

 

The Parliament of the

Commonwealth of Australia

 

HOUSE OF REPRESENTATIVES

 

 

 

 

Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill 2010

 

 

(1)     Clause 2, page 2 (cell at table item 2, 2nd column), omit the cell, substitute:

A single day to be fixed by Proclamation. A Proclamation must not be made unless the Minister is satisfied that funds required for the purposes of this Act have been appropriated.

However, if any of the provision(s) do not commence within the period of 12 months beginning on the day this Act receives the Royal Assent, the provisions do not commence at all.

[commencement]

(2)     Clause 6, page 3 (line 8), omit “appointed in accordance with”, substitute “established by”.

[definition of Commission]

(3)     Heading to clause 21, page 9 (line 21), at the end of the heading, add “ and to obtain documents ”.

[summonses and notices]

(4)     Clause 21, page 9 (line 22), after “may”, insert “, in writing,”.

[summonses and notices]

(5)     Clause 21, page 9 (line 22), after “appear”, insert “, at a time and place specified in the summons,”.

[summonses and notices]

(6)     Page 10 (after line 19), after clause 21, insert:

21A  Additional requirements—summonses and notices

             (1)  Before issuing a summons under subsection 21(1), or a notice under subsection 21(4), the member must be satisfied that it is reasonable in all the circumstances to do so.

             (2)  A time specified in a summons under subsection 21(1), or a notice under subsection 21(4), must be at least 14 days after the day on which the summons is issued or the notice is given.

             (3)  A summons under subsection 21(1) must set out the effect of the following provisions:

                     (a)  subsection 24(4) (right to legal representation);

                     (b)  section 25 (arrest of witness failing to appear);

                     (c)  section 32 (offences for failure of witness to attend or produce documents).

             (4)  A summons under subsection 21(1) requiring a person to appear before the Commission to give evidence must set out, so far as is reasonably practicable, the general nature of the matters in relation to which the person is to be questioned, unless the member issuing the summons is satisfied that, in the particular circumstances of the hearing to which the summons relates, it would prejudice the effectiveness of the hearing to do so.

[summonses and notices]

(7)     Clause 22, page 10 (lines 29 to 32), omit paragraph (1)(b), substitute:

                     (b)  the Commission believes on reasonable grounds that, if a summons were issued for the production of the thing or things, the thing or things might be concealed, lost, mutilated or destroyed;

the Commission may issue a search warrant.

[search warrants]

(8)     Clause 22, page 11 (line 3), omit “or any other person”.

[search warrants]

(9)     Clause 22, page 11 (line 22), omit “one month”, substitute “7 days”.

[search warrants]

(10)   Page 12 (after line 1), after clause 22, insert:

22A  Details of search warrant to be given to occupier, etc.

                   If:

                     (a)  a search warrant issued under subsection 22(1) in relation to land or premises is being executed, and the occupier of the land or premises, or a person who apparently represents the occupier, is present at the land or premises; or

                     (b)  a search warrant issued under subsection 22(1) in relation to a vessel, aircraft or vehicle is being executed and a person is present who is apparently in control of the vessel, aircraft or vehicle;

the person executing the warrant must make available a copy of the warrant, and identify himself or herself, to:

                     (c)  if paragraph (a) applies—the occupier or the person who apparently represents the occupier; or

                     (d)  if paragraph (b) applies—the person apparently in control of the vessel, aircraft or vehicle.

[search warrants]

(11)   Page 12, after proposed clause 22A, insert:

22B  Dealing with things seized under search warrant

             (1)  This section applies if a thing is seized under a search warrant issued under subsection 22(1).

             (2)  The person executing the search warrant must provide a receipt for the thing.

             (3)  The Commission may retain the thing if to do so is reasonably necessary for the purposes of the inquiry to which the thing relates.

             (4)  The Commission must return the thing to the person from whom it was seized or, if that person is not the owner of the thing, to the person who appears to the Commission to be entitled to possession of it, at the earlier of the following :

                     (a)  the time when retention of the thing by the Commission is not, or ceases to be, reasonably necessary for the purposes of the inquiry to which the thing relates;

                     (b)  60 days after the thing was seized.

[search warrants]

(12)   Page 12, after proposed clause 22B, insert:

22C  Commission must prepare and retain statements of reasons about search warrants

             (1)  The Commission must prepare and retain a written statement of reasons in relation to each search warrant issued under subsection 22(1).

             (2)  The statement of reasons must set out the following:

                     (a)  the reasons why the Commission suspects that the thing or things to which the search warrant relates are connected with the matter into which the Commission is inquiring;

                     (b)  the reasons why the Commission suspects that the thing or things may be on particular land or in particular premises or a particular vessel, aircraft or vehicle;

                     (c)  the reasons why the Commission believes that, if a summons were issued for production of the thing or things, the thing or things may be concealed, lost, mutilated or destroyed.

[search warrants]

(13)   Clause 24, page 13 (lines 8 to 13), omit paragraph (8)(c), substitute:

                     (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.

[hearings]

(14)   Clause 25, page 14 (line 7), omit “, or by any person to whom it is addressed,”.

[arrest]

(15)   Clause 25, page 14 (lines 8 and 9), omit “place building or vessel”, substitute “land, premises, vessel, aircraft or vehicle”.

[arrest]

(16)   Clause 28, page 15 (lines 28 and 29), omit subclause (2), substitute:

             (2)  Subsection (1) does not apply to the admissibility of evidence in proceedings for:

                     (a)  an offence against this Act; or

                     (b)  an offence against any of the following provisions, being an offence that relates to this Act:

                              (i)  section 6 of the Crimes Act 1914 (accessory after the fact);

                             (ii)  section 11.1 (attempt), 11.4 (incitement) or 11.5 (conspiracy) of the Criminal Code ;

                            (iii)  section 137.1 or 137.2 of the Criminal Code (false or misleading information or documents);

                            (iv)  section 149.1 of the Criminal Code (obstruction of Commonwealth public officials).

[admissibility of evidence]

(17)   Clause 29, page 16 (line 18), omit “, as amended by this Act”.

[protection of members etc.]

(18)   Clause 31, page 17 (line 2), omit “1,000”, substitute “30”.

[penalties]

(19)   Clause 32, page 17 (line 10), omit “1,000”, substitute “30”.

[penalties]

(20)   Clause 32, page 17 (line 19), omit “1,000”, substitute “30”.

[penalties]

(21)   Clause 32, page 17 (line 32), omit “1,000”, substitute “30”.

[penalties]

(22)   Clause 33, page 18 (line 15), omit “1,000”, substitute “30”.

[penalties]

(23)   Clause 36, page 19 (line 5), omit “the answering of the question or”.

[excuse of other legislation]

(24)   Clause 36, page 19 (line 8), omit “the Presiding Member”, substitute “a member”.

[excuse of other legislation]

(25)   Clause 37, page 19 (lines 23 and 24), omit “5,000 penalty units or by imprisonment for a period not exceeding 5 years”, substitute “120 penalty units or by imprisonment for a period not exceeding 2 years”.

[penalties]

(26)   Clause 38, page 20 (line 13), omit “2,000”, substitute “120”.

[penalties]

(27)   Clause 39, page 20 (line 23), omit “1,000”, substitute “60”.

[penalties]

(28)   Clause 40, page 21 (line 4), omit “1,000”, substitute “60”.

[penalties]

(29)   Clause 41, page 21 (line 19), omit “1,000”, substitute “60”.

[penalties]

(30)   Clause 41, page 21 (line 24), omit “1,000”, substitute “60”.

[penalties]

(31)   Clause 42, page 22 (line 12), omit “5,000”, substitute “300”.

[penalties]

(32)   Clause 42, page 22 (line 32), omit “5,000”, substitute “300”.

[penalties]

(33)   Clause 43, page 23 (line 4), omit “2,000”, substitute “120”.

[penalties]

(34)   Clause 43, page 23 (line 11), omit “2,000”, substitute “120”.

[penalties]

(35)   Clause 45, page 24 (line 30), omit “100 penalty units or imprisonment for three months”, substitute “30 penalty units or imprisonment for 6 months”.

[penalties]

(36)   Schedule 1, item 2, page 27 (lines 15 to 18), omit paragraph 16(3A)(c), substitute:

                     (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.

[parliamentary privilege]