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Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill 2010

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PARLIAMENTARY (JUDICIAL MISBEHAVIOUR OR INCAPACITY) COMMISSION BILL 2010

 

 

Supplementary Explanatory Memorandum

 

 

ADDITIONAL NOTES ON CLAUSES

 

Clause 21 Power to summons witnesses and take evidence

 

                     Clause 21 does not abrogate legal professional privilege. There is no need for a statement to this effect. It is the view of the Office of Parliamentary Counsel that specific provisions stating legal professional privilege is not abrogated will not be included unless it is reasonably arguable that a Bill could be read as abrogating the privilege. That is neither the intention nor the effect of this Bill.

 

 Clause 28: Statements made by witness not admissible in evidence against the witness

 

         The protection provided by Clause 28(1) is use immunity. It does not exclude derivative uses. Commonwealth criminal law policy requires that use immunity is generally only appropriate if there is a realistic prospect that a person being questioned may provide information that would disclose the commission of a serious offence. In the case of alleged judicial misbehaviour the range of possible misfeasance potentially extends to a wide variety of very serious criminal offences—including corruption. The Commission should not be placed in the position of having either to entirely immunise the criminal conduct of co-offenders or curtail its investigatory role into the alleged misconduct of a judicial officer.

 

         

Clause 36: Excuse of other legislation

 

Clause 36.3 provides that the answering of a question or production of a document or thing when required by the Commission will not be an offence under any Act which prohibits disclosure of information or production of an item. As a result a person could not be liable for a penalty under those provisions.

 



  Explanatory notes on proposed Amendments

 

The numbers in brackets refer to the numbering of the proposed amendments. The text explains their intended operation.

 

(1) The Clerk of the House of Representatives has advised that the commencement provision should refer to a proclamation not being able to be made until funds are appropriated because the Bill may be regarded as involving a financial initiative. The amendment removes a risk of ambiguity in respect of the test for funds having been appropriated such that the provision now refers to the Minister being satisfied that funds have been appropriated and refers to 12 months rather than 6 months as the time in which such a proclamation can be made. That longer time is because 6 months may not be sufficient time especially as an election may be called during the period should the Bill be passed in the current session.

 

(2) Amends the definition of Commission to refer to the Commission established under section 8 (rather than the Commission appointed).

 

 

(3) Adds a clarifying ending to the heading of clause 21 referring to the Commission’s power to obtain documents.

 

(4) Requires a summons issued under clause 21(1) to be in writing.

 

 

(5) Requires a summons issued under clause 21(1) to refer to the place where and the time when the person summonsed must appear before the Commission.

 

(6) Adds a new Clause 21A  Additional requirements—summonses and notices. The additional requirements include (a) that summonses must indicate the general nature of the matters on which the person is to be questioned unless that would prejudice the effectiveness of the hearing, (b) that a person summonsed should have at least 14 days notice of a hearing,  and; (c) that a summons must include information about the persons rights to legal representation, the possibility of arrest for failing to appear and the consequences of failing to attend or produce documents.

 

 

(7) Corrects a technical but important error in the drafting of clause 22(1)(b)—the point being that issuing a summons would allow someone the opportunity to conceal or destroy something instead of providing it to the Commission, while a search warrant would allow police to locate the relevant thing directly.

 

(8) Restricts the carrying out of search warrants to police officers.

 

 

(9) Requires search warrants to be executed within 7 days.

 

(10)                     Adds a new Clause 22A Details of search warrant to be given to occupier, etc .  The additional requirements require the police officer executing the warrant to identify him or her self and make a copy of the warrant available to the occupier of any premises or person in control of a vessel, aircraft or vehicle. This aligns the requirements for the execution of a warrant issued by the Commission to those contained in Division 2 of Part IAA of the Crimes Act 1914 to ensure proper accountability for the use of the power.

 

 

(11)                     Adds a new Clause 22 B Dealing with things seized under search warrant   The new clause clarifies how things seized should be dealt with. It requires the police officer executing the warrant to give a receipt for anything seized and defines the obligation to return seized items after the requirement for their retention has passed. This aligns the requirements for the execution of a warrant issued by the Commission to those contained in Division 2 of Part IAA of the Crimes Act 1914 to ensure proper accountability for the use of the power.

 

(12)                     Adds new Clause 22C Commission must prepare and retain statements of reasons about search warrants  The new clause sets out the procedural requirements that the Commission must follow before it exercises the power to issue a search warrant.  The Commission must prepare and retain a written statement setting out the reasons why it suspects a thing or things exist that is or are relevant to the Commissions’ enquiry, why the Commission suspects the thing or things is or are on a particular premise or place and why it believes it or they night be concealed, mutilated, lost or destroyed if a warrant were not to be issued. This aligns the requirements for the issue of a warrant by the Commission to those contained in Division 2 of Part IAA of the Crimes Act 1914 to ensure proper accountability for the use of the power.

 

 

(13)                     Confers an entitlement of legal counsel appointed to represent a justice into whose conduct or capacity an enquiry is occurring to cross-examine witnesses, subject to the control of the Commission. This makes explicit an entitlement that which was implicit in the Bill.

 

(14)                     Restricts the power to arrest a person failing to appear to the members of the police.

 

 

(15)                     A technical amendment to align the language of the sub-clause to previous provisions referring to ‘land, premises, vessel, vehicle or aircraft.’

 

(16)                     Clarifies that the protection for witnesses provided by Clause 28 does not extend to proceedings under the Act and directly related proceedings relating to the Act involving accessory conduct, incitement, conspiracy, false and misleading statements or obstruction of Commonwealth public officials.

 

 

(17)                     This amendment is a technical one made on advice from the Office of Parliamentary Counsel. It deletes the words ‘as amended by this Act’ in Clause 29(4) of the Bill because the inclusion of those words may imply that subsequent amendments made by later Acts do not apply. The provision, without these words, will have the intended effect as cross references to amended provisions apply to the provisions as amended from time to time.

 

(18)                     Realigns the penalty prescribed  based on comparable provisions of the Royal Commissions Act 1902 and the Proceeds of Crime Act 2002

 

 

(19)                     Realigns the penalty prescribed  based on comparable provisions of the Royal Commissions Act 1902 and the Proceeds of Crime Act 2002

 

(20)                     Realigns the penalty prescribed  based on comparable provisions of the Royal Commissions Act 1902 and the Proceeds of Crime Act 2002

 

 

(21)                     Realigns the penalty prescribed  based on comparable provisions of the Royal Commissions Act 1902 and the Proceeds of Crime Act 2002

 

(22)                     Realigns the penalty prescribed  based on comparable provisions of the Royal Commissions Act 1902 and the Proceeds of Crime Act 2002

 

 

(23)                     Amends Clause 36(1) to omit ‘the answering of the question or’ because the subsection is only about the production of documents.

 

(24)                     Amends Clause 36(2) to refer to ‘a member’ because any member, not just the Presiding Member, can ask questions in hearings.

 

 

(25)                     Realigns the penalty prescribed  based on comparable provisions of the Royal Commissions Act 1902 and the Proceeds of Crime Act 2002

 

(26)                     Realigns the penalty prescribed  based on comparable provisions of the Royal Commissions Act 1902 and the Proceeds of Crime Act 2002

 

 

(27)                     Realigns the penalty prescribed  based on comparable provisions of the Royal Commissions Act 1902 and the Proceeds of Crime Act 2002

 

(28)                     Realigns the penalty prescribed  based on comparable provisions of the Royal Commissions Act 1902 and the Proceeds of Crime Act 2002

 

 

(29)                     Realigns the penalty prescribed  based on comparable provisions of the Royal Commissions Act 1902 and the Proceeds of Crime Act 2002

 

(30)                     Realigns the penalty prescribed  based on comparable provisions of the Royal Commissions Act 1902 and the Proceeds of Crime Act 2002

 

 

(31)                     Realigns the penalty prescribed  based on comparable provisions of the Royal Commissions Act 1902 and the Proceeds of Crime Act 2002

 

(32)                     Realigns the penalty prescribed  based on comparable provisions of the Royal Commissions Act 1902 and the Proceeds of Crime Act 2002

 

 

(33)                     Realigns the penalty prescribed  based on comparable provisions of the Royal Commissions Act 1902 and the Proceeds of Crime Act 2002

 

(34)                     Realigns the penalty prescribed  based on comparable provisions of the Royal Commissions Act 1902 and the Proceeds of Crime Act 2002

 

 

(35)                     Realigns the penalty prescribed  based on comparable provisions of the Royal Commissions Act 1902 and the Proceeds of Crime Act 2002

 

(36)                     A technical drafting amendment to ensure compliance with the intent referred to in the Explanatory Memorandum.

 

Duncan Kerr SC MP