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Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill 2005

Part 4 Functions and reports of the Commission

17   Functions

             (1)  The Commission shall, in accordance with this section, inquire, and advise the Parliament, when a matter relating to a federal justice has been referred to it by a House of the Parliament, whether, in its opinion, facts amounting to proved misbehaviour or incapacity exist, as would warrant the removal of the justice from office by means of the provisions of section 72 of the Constitution.

             (2)  In carrying out its inquiry the Commission shall consider and give advice about only specific allegations made in precise terms contained in the matter referred by a  House.

18  Decision of questions

             (1)  Questions arising before the Commission shall be decided in accordance with the opinion of a majority of the members.

             (2)  Where the members are not unanimous in opinion on a question arising before the Commission, the particulars of the opinions of each of the members on that question shall be recorded.

19   Reports

             (1)  When a matter has been referred to the Commission, and the Commission has inquired into the matter, the Commission shall report its findings on the matter to the Parliament as soon as practical. The report shall be delivered to the Speaker of the House of Representatives and to the President of the Senate.

             (2)  If the Commission concludes a report following the dissolution of one or both Houses, it shall deliver the report to the Speaker and President as soon as practical after the first sitting day of the House of Representatives of the following Parliament.

             (3)  The report shall be comprehensive and shall annexe a full transcript of the Commission’s proceedings. The report shall state the Commission’s advice to the Parliament required by section 17. The opinions of all Commissioners, including any dissenting opinion, shall be included in the report.

             (4)  Subject to subsection (6), the President of the Senate and the Speaker of the House of Representatives shall, as soon as practicable after they receive the report of the Commission and the record of evidence, cause copies of the report and record to be laid before the Senate and the House of Representatives.

             (5)  If the Commission is of the opinion that, if any of its findings or conclusions, or any of the evidence given before the Commission were to be laid before the Houses of the Parliament:

                     (a)  a person who has been or may be charged with an offence may not receive a fair trial for the offence;

                     (b)  the conduct of an investigation of a breach or possible breach, of the law, may be prejudiced;

                     (c)  the existence or identity of a confidential source of information in relation to the enforcement or administration of the law may be disclosed or a person enabled to ascertain the existence or identity of that source; or

                     (d)  there may be prejudice to the safety of a person;

the Commission may include those findings or conclusions, or that evidence, in a separate report and deliver the report to the President of the Senate and the Speaker of the House of Representatives, together with a statement of its opinion.

             (6)  Where a separate report is prepared in accordance with subsection (5), the President of the Senate and the Speaker of the House of Representatives shall cause that separate report to be made available for inspection by Members of the Parliament and by the justice who is the subject of the inquiry by the Commission; but the matters referred to in the report must not be otherwise published except as may be specifically authorised by the resolution of a House.