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

Part 6 Offences

29   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.

30   Unauthorised presence at hearing or publication of evidence

                   A person who:

                     (a)  is present at a hearing in contravention of subsection 23(7); or

                     (b)  makes a publication in contravention of subsection 23(10) or subsection 18(6);

is guilty of an offence punishable, on summary conviction, by a fine not exceeding $100,000 or imprisonment for a period not exceeding 6 months.

31   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 must 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:  $100,000 or imprisonment for 6 months.

             (2)  Subsection (1) is an offence of strict liability.

Note:          For strict liability , see section 6.1 of the Criminal Code .

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

             (4)  A person appearing as a witness at a hearing before the Commission must 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 presiding member.

Penalty:  $100,000 or imprisonment for 6 months.

             (5)  Subsection (4) is an offence of strict liability.

Note:          For strict liability , see section 6.1 of the Criminal Code .

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

             (7)  It is a defence to a prosecution for an offence against subsection (4) constituted by a failure to produce a document or other thing to the 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 (3), (6) and (7) (see subsection 13.3(3) of the Criminal Code ).

             (8)  A person served with a notice under subsection 20(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:  $100,000 or imprisonment for 6 months.

             (9)  Subsection (8) does not apply if the person has a reasonable excuse.

           (10)  It is a defence to a prosecution for an offence against subsection (8) 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 (9) and (10) (see subsection 13.3(3) of the Criminal Code ).

32   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 is guilty of an offence.

             (2)  The penalty for an offence under subsection (1) is a fine not exceeding $100,000 or imprisonment for a period not exceeding 6 months.

             (3)  Subsection (1) is an offence of strict liability.

Note:          For strict liability , see section 6.1 of the Criminal Code .

33   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 is a separate offence.

34   Self-incrimination

             (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 production of the document or other thing might tend to incriminate the person or make the person liable to a penalty.

             (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 might tend to incriminate the person or make the person liable to a penalty.

35   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.

36   False or misleading evidence

             (1)  A person must 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 $500,000 or by imprisonment for a period not exceeding 5 years.

             (3)  Notwithstanding that an offence against subsection (1) is an indictable offence, a court of summary jurisdiction may hear and determine proceedings in respect of such an offence if the court is satisfied that it is proper to do so and the defendant and prosecutor consent.

             (4)  Where, in accordance with subsection (3), a court of summary jurisdiction convicts a person of an offence against subsection (1), the penalty that the court may impose is a fine not exceeding $200,000 or imprisonment for a period not exceeding 1 year.

37   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 20.

             (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 $200,000.

             (3)  Notwithstanding that an offence under subsection (1) is an indictable offence, a court of summary jurisdiction may hear and determine proceedings in respect of such an offence if the court is satisfied that it is proper to do so and the defendant and the prosecutor consent.

             (4)  Where, in accordance with subsection (3), a court of summary jurisdiction convicts a person of an offence under subsection (1), the penalty that the court may impose is a fine not exceeding $100,000 or imprisonment for a period not exceeding 12 months.

38   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 20;

is guilty of an indictable offence.

Penalty:  $100,000 or imprisonment for 1 year.

             (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.

39   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 20;

is guilty of an indictable offence.

Penalty:  $100,000 or imprisonment for 1 year.

             (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 ).

40   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 is guilty of an indictable offence.

Penalty:  Imprisonment for 1 year.

             (2)  Any person who intentionally prevents any person who is required to produce a document or other thing pursuant to a notice under subsection 20(4) from producing that document or thing in accordance with the notice is guilty of an indictable offence.

Penalty:  Imprisonment for 1 year.

41   Bribery of witness

                   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, on, or for, any person, on 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, on any agreement or understanding that any person will as a witness before the Commission give false testimony or withhold true testimony;

is guilty of an indictable offence.

Penalty:  Imprisonment for 5 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, on, or for, any person, on 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 20 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 20 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, on 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 20 will not comply with the requirement;

is guilty of an indictable offence.

Penalty:  Imprisonment for 5 years.

42   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, is guilty of an indictable offence.

Penalty:  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 20 will not comply with the requirement, is guilty of an indictable offence.

Penalty:  Imprisonment for 2 years.

43   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 to do so, 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; or

                     (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 authorised to inquire, the Commission may, if in its opinion it is appropriate to do so, 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; or

                     (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 to do so, 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.

44   Contempt 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, is guilty of an offence.

Penalty:  $10,000 or imprisonment for 3 months.