PARLIAMENTARY (JUDICIAL MISBEHAVIOUR OR INCAPACITY) COMMISSION BILL 2010

Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill 2010 i

Contents

Part 1--Preliminary

1 Short title ...................................................................................................... 1

2 Commencement ............................................................................................ 1

3 Objects of Act ............................................................................................... 2

4 Schedule(s) ................................................................................................... 2

5 This Act binds the Crown ............................................................................. 3

6 Definitions .................................................................................................... 3

7 Administration .............................................................................................. 4

Part 2--Establishment of the Commission

8 Establishment ................................................................................................ 4

9 Members ....................................................................................................... 4

10 Vacancy in membership.............................................................................. 4

Part 3--Administrative provisions

11 Remuneration of members .......................................................................... 5

12 Staff of the Commission ............................................................................. 6

13 Counsel assisting the Commission ............................................................. 6

14 Legal and financial assistance to justice ..................................................... 6

15 Reimbursement of expenses of witnesses ................................................... 6

16 Records of the Commission ........................................................................ 7

Part 4--Functions and reports of the Commission

17 Functions .................................................................................................... 7

18 Decision of questions .................................................................................. 7

19 Reports ........................................................................................................ 7

Part 5--Powers and proceedings of the Commission

20 Conduct of proceedings .............................................................................. 9

21 Power to summon witnesses and take evidence ......................................... 9

22 Search warrants ......................................................................................... 10

23 Previous inquiries ..................................................................................... 11

24 Hearings .................................................................................................... 12

25 Arrest of witness failing to appear ............................................................ 13

26 Powers of Commission in relation to documents and other things ........... 14

27 Standard of proof, admissibility of evidence and natural justice .............. 14

28 Statements made and documents produced by witness not

admissible in evidence against the witness ...................................... 15

29 Protection of members, &c. ...................................................................... 15

Part 6--Offences

30 Application of the Criminal Code ............................................................ 16

31 Unauthorised presence at hearing or publication of evidence .................. 16

ii Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill 2010

32 Failure of witnesses to attend or produce documents ............................... 16

33 Penalty for refusing to be sworn or to give evidence ................................ 18

34 Acts or omissions on different days to constitute separate offences ......... 18

35 Self-incrimination ..................................................................................... 18

36 Excuse of other legislation ........................................................................ 18

37 False or misleading evidence .................................................................... 19

38 Destroying documents or other things ...................................................... 19

39 Injury to witness ....................................................................................... 20

40 Dismissal by employers of witness ........................................................... 20

41 Preventing witnesses from attending or producing document .................. 21

42 Bribery of witness ..................................................................................... 21

43 Fraud on witness ....................................................................................... 22

44 Commission may communicate information ............................................ 23

45 Obstruction of Commission ...................................................................... 24

Part 7--Miscellaneous

46 Regulations ............................................................................................... 24

Schedule 1--Amendments to the Parliamentary Privileges Act

1987

2 Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill 2010

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1. Sections 1 and

2 and anything in

this Act not

elsewhere covered

by this table

The day on which this Act receives the

Royal Assent.

2. Sections 5 to

By proclamation, provided that funds have

been appropriated for the purposes of this

Act.

However, if this does not occur within

6 months of this Act receiving the Royal

Assent, the provisions do not commence at

all.

Note:

This table relates only to the provisions of this Act as originally

passed by both Houses of the Parliament and assented to. It will not be

expanded to deal with provisions inserted in this Act after assent.

(2) Column 3 of the table contains additional information that is not

part of this Act. Information in this column may be added to or

edited in any published version of this Act.

3 Objects of Act

The objects of this Act are to:

(a) establish the Parliamentary (Judicial Misbehaviour or

Incapacity) Commission; and

(b) amend section 16 of the Parliamentary Privileges Act 1987.

4 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or

repealed as set out in the applicable items in the Schedule

concerned, and any other item in a Schedule to this Act has effect

according to its terms.

Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill 2010 3

5 This Act binds the Crown

This Act binds the Crown in each of its capacities.

6 Definitions

(1) In this Act, unless the contrary intention appears:

Commission means the Parliamentary (Judicial Misbehaviour or

Incapacity) Commission appointed in accordance with section 8;

document includes any book, register or other record of

information, however compiled, recorded or stored;

incapacity has the same meaning as the word `incapacity' in

section 72 of the Constitution;

judge means a judge of a court created by the Parliament or of the

Supreme Court of a State or Territory;

justice of a federal court means a Judge of the High Court or a

judge or magistrate of a court created by the Parliament;

legal practitioner means a barrister, a solicitor, a barrister and

solicitor, or a legal practitioner, of the High Court or of the

Supreme Court of a State or Territory;

member means a member of the Commission;

misbehaviour has the same meaning as the word `misbehaviour' in

section 72 of the Constitution: and, subject to that provision, is not

restricted to conduct which would constitute a criminal offence;

Presiding Member means the member of the Commission holding

an appointment under subsection 9(4) or subsection 10(3);

reasonable excuse in relation to any act or omission by a witness

or a person summoned as a witness before the Commission means,

unless declared otherwise by this Act, an excuse which would

excuse an act or omission of a similar nature by a witness or a

person summoned as a witness before a court of law;

4 Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill 2010

special circumstances scheme includes any arrangement for

payment of financial assistance for legal costs and related expenses

by the Commonwealth in special circumstances in cases not

covered by extant statutory and non-statutory schemes.

7 Administration

The Attorney-General has the general administration of this Act.

Part 2--Establishment of the Commission

8 Establishment

The Parliamentary (Judicial Misbehaviour or Incapacity)

Commission is established by this section.

9 Members

(1) The Commission consists of three members; two of whom shall be

appointed jointly by the President of the Senate and the Speaker of

the House of Representatives on the recommendation of the Prime

Minister, and one who shall be appointed jointly by the President

of the Senate and the Speaker of the House of Representatives on

the recommendation of the Leader of the Opposition.

(2) At least one member of the Commission shall be a retired judge of

the High Court or of a court created by the Parliament, or a judge

or retired judge of a Supreme Court of a State or Territory.

(3) A person shall not be appointed as a member if the person is a

justice of a federal court.

(4) The Speaker and President shall appoint jointly one of the

members to be the Presiding Member.

10 Vacancy in membership

(1) If a member dies, becomes physically or mentally incapable of

performing the functions of a member or, by notice in writing to

the President of the Senate and the Speaker of the House of

Representatives, resigns his or her appointment, the remaining

Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill 2010 5

members shall constitute the Commission until a replacement

member is appointed, and this Act shall have effect as if subsection

9(1) required the appointment of 2 members.

(2) Whenever a vacancy in membership of the Commission occurs the

Speaker and the President of the Senate, as soon as practicable,

shall jointly appoint a replacement member. The requirements of

subsections 9(1), 9(2) and 9(3) shall apply when appointments are

made to fill any vacancy.

(3) If the Presiding Member dies, becomes physically or mentally

incapable of performing the functions of a member or, by notice in

writing to the President of the Senate and the Speaker of the House

of Representatives, resigns his or her appointment, another member

shall be appointed jointly by the President of the Senate and the

Speaker of the House of Representatives to be the Presiding

Member.

Part 3--Administrative provisions

11 Remuneration of members

(1) A member of the Commission shall be entitled to an honorarium

while a member.

(2) A member of the Commission shall be entitled to a daily payment

while the Commission is considering a matter. For the purpose of

this subsection the Commission shall be deemed to be considering

a matter from the day it first meets after receiving a referral from a

House of the Parliament until the day it submits its report on the

matter.

(3) Payments to members in accordance with subsections (1) and (2)

shall be as determined by the Remuneration Tribunal but, if no

determination of that remuneration is in operation, the member

shall be paid such remuneration as is prescribed.

(4) A member shall be paid such allowances as are prescribed.

(5) This section has effect subject to the Remuneration Tribunal Act

1973.

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12 Staff of the Commission

(1) Subject to subsection (2), the staff of the Commission shall be

persons made available to the Commission by the President of the

Senate and the Speaker of the House of Representatives.

(2) The President of the Senate and the Speaker of the House of

Representatives may arrange with the Secretary of a Department of

the Australian Public Service for the services of officers or

employees in the Department to be made available to the

Commission.

(3) While a person is performing services for the Commission

pursuant to an arrangement under this section, that person shall

perform his or her functions and duties in accordance with the

directions of the Presiding Member and not otherwise.

13 Counsel assisting the Commission

The Commission may appoint a legal practitioner to assist the

Commission as counsel, either generally or in relation to a

particular matter or matters.

14 Legal and financial assistance to justice

(1) A justice of a federal court who is the subject of inquiry by the

Commission is entitled to make an application to the Attorney-

General, under the special circumstances scheme, for the provision

of assistance under this section in respect of the costs of his or her

representation by a legal practitioner in relation to the inquiry.

(2) The Attorney-General shall comply with an application under

subsection (1).

15 Reimbursement of expenses of witnesses

A witness appearing before the Commission shall be paid by the

Commonwealth in respect of the expenses of the attendance of the

witness an amount authorised in accordance with the prescribed

scale or, if there is no prescribed scale, such amount as the

Commission determines.

Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill 2010 7

16 Records of the Commission

The Parliament is entitled to the possession of records kept by the

Commission that are no longer required for the purposes of the

Commission, and all such records shall be deemed to be records of

the Parliament for the purposes of the Archives Act 1983.

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

8 Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill 2010

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;

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.

Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill 2010 9

Part 5--Powers and proceedings of the Commission

20 Conduct of proceedings

(1) The Commission shall, 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 shall conduct its inquiry as quickly as a proper

consideration of the matters before the Commission will permit.

21 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 member of

the Commission presiding at the hearing; and

(b) a member of the Commission, or a person who is an

authorized person in relation to the Commission, may

administer an oath or affirmation to a person so 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.

10 Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill 2010

(5) In this section, a reference to a person who is an authorized person

in relation to the Commission is a reference to a person authorized

in writing, or a person included in a class of persons authorized 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.

22 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, upon any land or upon 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, a 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) shall authorise 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 upon the land or upon or into the premises, vessel,

aircraft or vehicle;

(b) to search the land, premises, vessel, aircraft or vehicle for

things of the relevant kind; and

or upon or in the premises, vessel, aircraft or vehicle and

deliver things so seized to the Commission.

Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill 2010 11

(4) There shall be stated in a warrant issued under this section:

(a) a statement of the purpose for which the warrant is issued,

which shall include a reference to the matter into which the

Commission is inquiring and with which the things of the

relevant kind are connected;

(b) whether entry is authorized to be made at any time of the day

or night or during specified hours of the day or night;

and

(d) a date, not being later than one month after the date of issue

of the warrant, upon 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 shall be deemed to authorize the person

to seize that thing.

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

23 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 shall not be 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.

12 Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill 2010

24 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 a person 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;

(b) any person authorised by the Commission or entitled to

appear before it at the hearing; or

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

Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill 2010 13

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 shall be such as the Commission directs.

(10) The Commission may give directions that:

(a) evidence given before the Commission;

(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 22;

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;

shall not be published, and the Commission shall 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.

25 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 shall authorize the apprehension of the witness and the

witness being brought before the Commission, and the witness'

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 shall have power to break and enter any place building

or vessel for the purpose of executing it.

14 Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill 2010

(4) The apprehension of any witness under this section shall not

relieve him or her from any liability incurred by the witness by

reason of his or her non-compliance with the summons.

26 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;

(b) retain the documents or other things for so long as is

reasonably necessary for the purposes of the Commission's

inquiry; and

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 shall, 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.

27 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 shall take into account include:

(a) the importance of the evidence in the proceeding; and

Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill 2010 15

(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 shall act in accordance with the rules of natural

justice.

28 Statements made and documents produced 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 a Commission;

(b) the production of a document or other thing by the person

pursuant to a summons, requirement or notice under

section 21 or section 32.

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

proceedings for an offence against this Act.

(3) For the removal of doubt, proceedings in the Parliament for the

purposes of section 72 of the Constitution are not proceedings in a

court for the purposes of subsection (1).

29 Protection of members, &c.

(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.

16 Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill 2010

(2) Subject to this Act, a person summoned to attend or appearing

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 shall 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 subsections 16(3), 16(3A) and 16(4) of the

Parliamentary Privileges Act 1987, as amended by this Act.

Part 6--Offences

30 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.

31 Unauthorised presence at hearing or publication of evidence

A person who:

(a) is present at a hearing in contravention of subsection 24(7);

(b) makes a publication in contravention of subsection 24(10) or

subsection 19(6);

is guilty of an offence punishable, on summary conviction, by a

fine not exceeding 1,000 penalty units or imprisonment for a

period not exceeding 6 months.

32 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 shall not:

(a) fail to attend as required by the summons; or

Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill 2010 17

(b) fail to attend from day to day unless excused, or released

from further attendance, by a member of the Commission.

Penalty: 1,000 penalty units or imprisonment for 6 months.

(2) Subsection (1) does not apply if the person has a reasonable

excuse.

(3) A person appearing as a witness at a hearing before the

Commission shall 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 member of the Commission presiding at

the hearing.

Penalty: 1,000 penalty units or imprisonment for 6 months.

(4) Subsection (3) does not apply if the person has a reasonable

excuse.

(5) It is a defence to a prosecution for an offence against subsection (3)

constituted by a failure to produce a document or other thing to a

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 (2), (4) and (5) (see subsection 13.3(3) of the Criminal

Code).

(6) A person served with a notice under subsection 21(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: 1,000 penalty units or imprisonment for 6 months.

(7) Subsection (6) does not apply if the person has a reasonable

excuse.

(8) It is a defence to a prosecution for an offence against subsection (6)

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 (7) and (8) (see subsection 13.3(3) of the Criminal Code).

18 Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill 2010

33 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 shall be guilty of an offence.

(2) The penalty for an offence under subsection (1) is a fine not

exceeding 1,000 penalty units or imprisonment for a period not

exceeding 6 months.

34 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 shall be a separate offence.

35 Self-incrimination

It is not a reasonable excuse for the purposes of section 32 for a

person to refuse or fail to produce a document or thing or not

answer any question in relation to such refusal on the grounds that

the production of the same might incriminate them or expose them

to a penalty.

Note:

Section 28 protects witnesses against self incrimination in proceedings

outside the Commission.

36 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.

Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill 2010 19

(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.

37 False or misleading evidence

(1) A person shall 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

5,000 penalty units or by imprisonment for a period not exceeding

5 years.

38 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

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 21.

(2) An offence under subsection (1) is an indictable offence and,

subject to this section, is punishable on conviction by

20 Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill 2010

imprisonment for a period not exceeding 2 years or by a fine not

exceeding 2,000 penalty units.

39 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

a summons, requirement or notice under section 21;

is guilty of an indictable offence.

Penalty: 1,000 penalty units, or imprisonment for 12 months.

(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.

40 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

requirement or notice under section 21;

is guilty of an indictable offence.

Penalty: 1,000 penalty units, or imprisonment for 12 months.

(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.

Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill 2010 21

Note:

A defendant bears an evidential burden in relation to the matters in

subsection (2) (see subsection 13.3(3) of the Criminal Code).

41 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 shall be guilty of an indictable

offence.

Penalty: 1,000 penalty units, or imprisonment for 12 months.

(2) Any person who intentionally prevents any person who is required

to produce a document or other thing pursuant to a notice under

subsection 21(4) from producing that document or thing in

accordance with the notice is guilty of an indictable offence.

Penalty: 1,000 penalty units, or imprisonment for 12 months.

42 Bribery of witness

(1) 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, upon, or for, any person, upon 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

property or benefit of any kind for himself, or any other

person, upon any agreement or understanding that any person

shall as a witness before the Commission give false

testimony or withhold true testimony;

shall be guilty of an indictable offence.

Penalty: 5,000 penalty units, or imprisonment for five years.

22 Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill 2010

(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, upon, or for, any person, upon 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 21 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 21 not to comply with

the requirement; or

property or benefit of any kind for himself, or any other

person, upon 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 21 will not comply with the requirement;

is guilty of an indictable offence.

Penalty: 5,000 penalty units, or imprisonment for 5 years.

43 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, shall be guilty of an indictable offence.

Penalty: 2,000 penalty units, or 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 21 will not comply

with the requirement, is guilty of an indictable offence.

Penalty: 2,000 penalty units, or imprisonment for 2 years.

Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill 2010 23

44 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 so to do,

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;

(b) the Director of Public Prosecutions; or

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;

(b) takes evidence; or

that, in the opinion of the Commission, relates or may relate to a

matter into which a Royal Commission is required or authorized to

inquire, the Commission may, if in its opinion it is appropriate so

to do, 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;

(b) takes evidence; or

24 Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill 2010

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 so to do,

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.

45 Obstruction 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, shall be guilty of an offence.

Penalty: 100 penalty units or imprisonment for three months.

Part 7--Miscellaneous

46 Regulations

The Governor-General may make regulations, not inconsistent with

this Act, prescribing matters:

(a) required or permitted by this Act to be prescribed; or

(b) necessary or convenient to be prescribed for carrying out or

giving effect to this Act.

Amendments to the Parliamentary Privileges Act 1987 Schedule 1

Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill 2010 25

Schedule 1--Amendments to the

Parliamentary Privileges Act 1987

1 Subsection 16(3)

Omit:

"In", substitute

"Subject to this section, in"

2 After Subsection 16(3)

Insert:

"(3A)

If:

(a) a person (the `witness') gives evidence against another

person in a court or tribunal; and

(b) the witness had previously made a statement in evidence

before a House or a committee; and

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.".

Commonwealth of Australia Bills

PARLIAMENTARY (JUDICIAL MISBEHAVIOUR OR INCAPACITY) COMMISSION BILL 2010