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Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill 2007 [2008]

Part 5 Powers and proceedings of the Commission

19   Conduct of proceedings

             (1)  The Commission must, 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 is to conduct its inquiry as quickly as a proper consideration of the matters before the Commission will permit.

20   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 presiding member; and

                     (b)  a member of the Commission, or a person who is an authorised person in relation to the Commission, may administer an oath or affirmation to a person 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 authorised person in relation to the Commission is a reference to a person authorised in writing, or a person included in a class of persons authorised 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.

21   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, on any land or on 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, the 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) authorises 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 on the land or on or into the premises, vessel, aircraft or vehicle; and

                     (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 on the land or on or in the premises, vessel, aircraft or vehicle and deliver things seized to the Commission.

             (4)  A warrant issued under this section must include:

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

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

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

                     (d)  a date, not being later than one month after the date of issue of the warrant, on 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 is deemed to authorise the person to seize that thing.

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

22   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 is not 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.

23   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 persons 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; or

                     (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 is such as the Commission directs.

           (10)  The Commission may give directions that:

                     (a)  evidence given before the Commission; or

                     (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 21; or

                     (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;

must not be published, and the Commission must 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.

24   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 authorises the apprehension of the witness and the witness being brought before the Commission, and the witness’s 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 has 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 does not relieve him or her from any liability incurred by the witness by reason of his or her non-compliance with the summons.

25   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; 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 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 must, 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.

26   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 must 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 must act in accordance with the rules of natural justice.

27   Statements made 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 the Commission;

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

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

28   Protection of members, etc.

             (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 appear 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 must 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 section 16 of the Parliamentary Privileges Act 1987 .