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Inquiries Bill 2014
Introduction Print
EXPLANATORY MEMORANDUM
General
The Inquiries Bill 2014 will provide a new legislative framework for the
establishment and conduct of inquiries in Victoria.
A new, modern framework
The new framework established by the Bill will provide for 3 types of ad hoc
inquiry that can be established by the executive Government to inquire into
any matter--Royal Commissions, Boards of Inquiry and Formal Reviews.
The existing Royal Commission and Board of Inquiry models will be
retained, with the Bill modernising and building on the existing legislative
provisions in the Constitution Act 1975 and Evidence (Miscellaneous
Provisions Act) 1958.
The Bill will also provide for a less formal model of inquiry, known as the
Formal Review under the Bill. Inquiries of this type have been established
by the executive Government (e.g. the Protecting Victoria's Vulnerable
Children Inquiry), but currently lack any legislative basis or recognition.
A clear, flexible approach to inquiries
In providing for the establishment and conduct of inquiries, the Bill balances
the need for certainty and the importance of flexibility. This approach
recognises that, to be effective, an inquiry requires both--
· the tools with which to obtain the information necessary to
fulfil its terms of reference; and
· the flexibility to tailor its operations to suit its circumstances
(e.g. the subject matter of its inquiry and the timelines for
reporting).
571509 1 BILL LA INTRODUCTION 20/8/2014
The framework in the Bill provides each form of inquiry with powers and
procedures to allow for the conduct of an effective and efficient inquiry.
In each case, these powers and procedures are tailored to reflect the status of
each form of inquiry and the nature of the matters it may inquire into. It also
establishes minimum procedural and other protections for those conducting
and otherwise involved in an inquiry.
At the same time, the Bill maintains flexibility for inquiries to determine
their own operations--for example, by issuing practice notes or directions.
The powers and procedures in the Bill are designed to facilitate, rather than
mandate, the manner in which the inquiry is conducted, and need not be
utilised unless specifically required by the Bill. For example, while the Bill
provides a Royal Commission with the power to compel evidence, it need not
do so if it can lawfully acquire the information it needs through other means
(e.g. through the cooperation of persons willing and able to volunteer such
information). Similarly, while the Bill facilitates the conduct of formal
public hearings by each type of inquiry, a particular inquiry need not do so if
it would be neither necessary nor convenient.
Independence and autonomy of inquiries
The Bill provides for the procedural and substantive independence of all
forms of inquiry. This is consistent with current legislation and practice in
Victoria.
Independence of executive Government is a fundamental feature of Royal
Commissions and other executive inquiries. Such independence reflects the
important public purpose which these inquiries serve, and is necessary if they
are to be effective.
The Bill allows the executive Government to establish an inquiry, set its
parameters (e.g. terms of reference and reporting date), and appoint its key
personnel. These are appropriate roles for Government. However, once
established, the Government has no further role in directing the conduct of
the inquiry. Unlike most other public bodies established by Government, the
inquiry and its personnel are not subject to Ministerial direction or control.
The independence of the inquiry is further reflected and enshrined in various
provisions of the Bill. In particular, the Bill provides that persons conducting
an inquiry--
· have the same protections as a Supreme Court Judge
(including immunity from criminal or civil proceedings and
non-compellability in relation to the performance of inquiry
functions); and
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· have autonomy to determine how to manage the inquiry's
operations (including the employment and engagement of staff
and the manner in which the inquiry is conducted); and
· will not be subject to the usual requirements under the Public
Administration Act 2004 to comply with public sector values
relating to the provision of advice to Government and the
implementation of Government policies and programs.
Accountability and oversight
The Bill will ensure that inquiries are accountable for their operations and
subject to appropriate external oversight, while at the same time ensuring that
the time and resources of inquiries are not diverted away from their primary
function of investigating matters in the public interest.
The following key accountability mechanisms are provided for or
contemplated by the Bill--
· Inquiries will be required to produce a report for Government
on the conduct of their inquiry. Those reports may (and, in the
case of Royal Commissions and Boards of Inquiry, must) be
tabled in Parliament, making them available to the public at
large.
· The finances of inquiries will be included and audited as part
of the annual report of the department in respect of which the
inquiry is established. However, the Bill will not require
inquiries to directly report under the Financial Management
Act 1994. Financial information may nonetheless be included
in an inquiry's report.
· On the completion of an inquiry, the inquiry's documents must
be transferred to the Public Record Office Victoria (PROV) as
soon as practicable. This will ensure that, subject to any
declaration under the Public Records Act 1973 (e.g. in
relation to personal or private records), inquiry documents are
made available to the public at the earliest appropriate
opportunity.
· While the Public Administration Act 2004 will not apply to
persons conducting an inquiry, the employment protections and
requirements will apply in respect of any staff employed under
Part 3 of that Act for the purposes of an inquiry.
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Finally, persons who conduct and support an inquiry will be subject to the
jurisdiction of the Independent Broad-based Anti-corruption Commission in
respect of serious corrupt conduct.
Clause Notes
PART 1--PRELIMINARY
Clause 1 provides that the purpose of the Bill is to create a framework for
the establishment and conduct of 3 types of inquiry, which can
be established by the executive Government on an ad hoc basis,
to inquire into any matter--
· Royal Commissions, which will have the broadest
range of coercive powers and, in practice, are likely to
be conducted with the greatest level of formality. It is
intended that Royal Commissions will be used for the
most significant matters.
· Boards of Inquiry, which will have a narrower range of
coercive powers than Royal Commissions. In practice,
it is intended that they will be conducted less formally
than Royal Commissions and be a less expensive and
time consuming form of inquiry.
· Formal Reviews, which will not have coercive powers.
It is intended that they will be conducted less formally
than Royal Commissions and Boards of Inquiry.
Subclause (3) confirms that the Bill does not apply to (or affect)
inquiries that have been established otherwise than under the
Bill. For example, inquiries established under other Acts.
Clause 2 provides that the Bill (other than clause 148) will come into
operation on a day or days to be proclaimed, or on 1 August
2015 if not proclaimed earlier.
The Bill will apply to any inquiries established on or after its
commencement. In the case of any Royal Commission or
Board of Inquiry on foot at the date of commencement, the Bill
includes transitional provisions which provide for the continued
application of the current legislative provisions of the Evidence
(Miscellaneous Provisions) Act 1958 to those inquiries.
This will ensure that any such inquiries are unaffected by the
commencement of the Bill.
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Subclause (2) provides that clause 148 comes into operation on
the later of the day on which clause 3 of the Bill or section 158
of the Legal Profession Uniform Law Application Act 2014
comes into operation. This is necessary as that Act, because it
is part of a uniform scheme, does not have a default
commencement date.
Clause 3 defines terms which are used in the Bill.
The key definitions used in the Bill are--
Board of Inquiry officer, Formal Review officer and Royal
Commission officer mean--
· a commissioner (in the case of a Royal Commission) or
member (in the case of a Board of Inquiry or Formal
Review) of the relevant inquiry; or
· a member of staff of the Royal Commission, Board of
Inquiry or Formal Review (as the case requires);
chairperson means--
· if there is only one commissioner (in the case of a Royal
Commission) or member (in the case of a Board of
Inquiry or Formal Review), that commissioner or
member; or
· if there is more than one commissioner or member, the
commissioner or member (as the case requires)
specified as the chairperson in the instrument
establishing the relevant inquiry;
commissioner means a person appointed to constitute a Royal
Commission under the Bill;
member means--
· in the case of a Board of Inquiry, a person appointed by
the establishing Order for the Board of Inquiry;
· in the case of a Formal Review, a person appointed by
the establishing instrument for the Formal Review;
member of staff means--
· in the case of a Royal Commission, any staff, consultant
or Australian legal practitioner employed or engaged to
assist the Commission, as referred to in clause 9;
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· in the case of a Board of Inquiry, any staff, consultant or
Australian legal practitioner employed or engaged to
assist the Board, as referred to in clause 56;
· in the case of a Formal Review, any staff or consultant
employed or engaged to assist the Review, as referred to
in clause 96;
notice to attend means a notice requiring attendance before a
Royal Commission or Board of Inquiry to answer questions or
to answer questions and produce documents or other things;
notice to produce means a notice requiring production of
documents or other things to a Royal Commission, a Board of
Inquiry or an officer thereof.
Clause 4 provides that the Bill binds the Crown in right of Victoria, and
to the extent that the legislative power of the Parliament
permits, the Crown in all its other capacities.
As reflected in the legislative note--
· it is not intended for the Bill to affect the prerogative of
the Crown (clause 8); and
· it is intended for the offences contained in the Bill to
apply to the Crown (clause 131).
PART 2--ROYAL COMMISSIONS
Part 2 of the Bill provides for the establishment and conduct of Royal
Commissions, including--
· the powers of Royal Commissions;
· procedures and protections in relation to Royal
Commissions;
· offences in relation to Royal Commissions.
Division 1--Establishment of Royal Commissions
Clause 5 provides for the way in which a Royal Commission is
established.
Subclause (1) provides that the Governor, with the advice of the
Premier, can establish a Royal Commission by issuing a
commission (in the form of letters patent under the Public Seal)
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appointing one or more natural persons to inquire into and
report on specified terms of reference.
Subclause (2)(a) provides that certain matters must be specified
in the letters patent. For example, the letters patent must
specify the terms of reference of the Royal Commission.
As reflected in the legislative note to subclause (2), clause 123
restricts the scope and powers of Royal Commissions in relation
to independent entities.
Subclause (2)(b) provides that additional matters may be
specified in the letters patent. For example, the letters patent
may specify whether the Royal Commission can incur expenses
from the Consolidated Fund and, if so, the maximum amount
that can be incurred. Subclause (2)(b)(vi) provides additional
flexibility by confirming that the Governor (with the advice of
the Premier) may specify any other matters which seems
appropriate. Such matters may include--
· the location(s) at which any hearings of the Royal
Commission may or must be held;
· the relationship between the Royal Commission and
other relevant inquiries, such as police investigations
and coronial inquests;
· previous inquiries, investigation or reports to which the
Royal Commission must have regard.
Clause 6 provides that the Premier must ensure that the letters patent
establishing a Royal Commission (and any variation to them)
are published in the Government Gazette as soon as practicable.
Section 153 of the Evidence Act 2008 provides certain
evidential presumptions that will apply once the letters patent
are published in the Government Gazette.
Clause 7 confirms that, as provided for under equivalent Commonwealth
legislation, a Royal Commission established under this Bill may
operate concurrently with another Royal Commission, if the
letters patent establishing the Royal Commission so provide.
Concurrent Royal Commissions may be established to inquire
into matters which are relevant to all or multiple Australian
jurisdictions. The primary benefit of a concurrent Commission,
as opposed to having separate Commissions in each
jurisdiction, is that a concurrent Commission will have the
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benefit of access to the powers and procedures of each
jurisdiction's legislation, and can utilise the information it
obtains to further its inquiries in all jurisdictions. This ensures
that an inquiry is not confined or impeded by jurisdictional
limits.
A recent example of a concurrent Royal Commission is the
Royal Commission into Institutional Responses to Child Sexual
Abuse.
Clause 8 preserves the Crown's prerogative power to establish a Royal
Commission. In particular, the prerogative power is not
affected by the repeal of the current provisions in Part IVA of
the Constitution Act 1975 dealing with the establishment of
Commissions of Inquiry.
As the Bill repeals the current Royal Commission powers under
the Evidence (Miscellaneous Provisions) Act 1958, Royal
Commissions established under the Crown's prerogative power
will not have any coercive powers of investigation conferred by
Victorian statutes.
Division 2--Arrangements to facilitate Royal Commissions
Clause 9 provides for the employment and engagement of staff and
services to support a Royal Commission's inquiry.
Staff generally
The clause provides that persons may be employed under Part 3
of the Public Administration Act 2004 for the Royal
Commission to perform its functions.
This is not a direct power of employment conferred on the
chairperson of the Royal Commission, because doing so would
impose reporting and compliance obligations on the chairperson
that would distract from the conduct of the inquiry. Instead, this
is a power that is to be exercised by a public service body Head
(or other official) who is conferred a direct power of
employment (e.g. under section 20(1) of the Public
Administration Act 2004). However, as contemplated in the
legislative note to subclause (1) and consistent with the
independence of Royal Commissions, this power may be
delegated to the chairperson of a Royal Commission (e.g. under
section 18 of the Public Administration Act 2004).
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The clause also provides that the chairperson of a Royal
Commission may enter into agreements or arrangements for the
provision of existing public servants to the Royal Commission
(e.g. as seconded staff).
Subclause (4)--
· provides that the chairperson of the Royal Commission
may determine any terms and conditions upon which
persons are employed or engaged under this clause
(subject to applicable laws and workplace agreements);
and
· confirms that, once employed for (or provided or
seconded to) the Royal Commission, all such persons
are subject to the direction of the chairperson of the
Royal Commission.
Counsel assisting
The clause confirms that the chairperson of a Royal
Commission may engage one or more Australian legal
practitioners to assist the Royal Commission as counsel.
However, as counsel assisting is the most important official of a
Royal Commission other than the commissioners, it is
appropriate for the Government to have a role in that
appointment. Accordingly, subclause (3) provides that the
engagement of counsel assisting may only be made with the
Premier's approval. Subclause (4) confirms that, once engaged
by the Royal Commission, counsel assisting is subject to the
direction of the chairperson of the Royal Commission.
Other consultants
The clause provides that the chairperson of a Royal
Commission can engage persons with suitable qualifications
and experience as consultants. While the nature of the
consultants required will depend on the subject matter the Royal
Commission investigates and the methodology it adopts to
investigate that subject matter, consultants could be engaged to
provide expert technical or specialist advice to the Royal
Commission or conduct research for the Royal Commission.
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General services arrangements
The clause provides that the chairperson of a Royal
Commission may enter into agreements or arrangements for the
provision of other services to the Royal Commission. It is
expected that these services are likely to include IT,
accommodation, media, security and other support services.
As a Royal Commission is not a department for the purposes of
the Financial Management Act 1994, the supply management
obligations under Part 7A of the Financial Management Act
1994 will not apply unless the Royal Commission (or all Royal
Commissions) are declared by Order in Council as specified
entities for the purposes of Part 7A, as contemplated by
section 54AA of the Financial Management Act 1994.
Delegation
Subclause (5) provides that the chairperson may delegate any
functions under this clause to any other Royal Commission
officer, except for the delegation function itself. Further, as
contemplated in the legislative note to subclause (5),
section 18(2) of the Public Administration Act 2004 permits
the sub-delegation of powers delegated under section 18 of that
Act (e.g. a public service body Head's power of employment
that is delegated to the chairperson).
These provisions allow the chairperson to delegate the exercise
of the Royal Commission's administrative functions as the
chairperson sees fit.
Clause 10 provides that the public sector values in sections 7(1)(a)(i)
and (c)(iii) of the Public Administration Act 2004 do not
apply to a member of staff in respect of their employment or
engagement with a Royal Commission.
These public sector values relate to providing advice to the
Government and implementing Government policies and
programs. As Royal Commissions operate independently of the
Government, it is not appropriate for public servants who are
members of staff of the Royal Commission to be under an
obligation to advise Government and implement its policies and
programs.
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The amendments made in clause 138(b) to the definition of
public official in the Public Administration Act 2004 has the
equivalent effect of providing that commissioners are also not
subject to those public sector values.
Clause 11 provides that a Royal Commission may incur expenses and
meet financial obligations from the Consolidated Fund only if
the letters patent authorise such payment and, if so, only to the
extent of the maximum amount that is specified in the letters
patent.
Subclause (2) provides that the Consolidated Fund is
appropriated to the extent necessary to meet a Royal
Commission's authorised expenses.
As noted in relation to clause 9, a Royal Commission will not
be a department for the purposes of the Financial Management
Act 1994. However, a Commission may be an "authority" for
the purposes of that Act if so prescribed. This means that a
Royal Commission is not (unless so prescribed) subject to the
administrative burden of complying with the Financial
Management Act 1994 and that a Royal Commission's
appropriated expenditure will be administered, audited and
reported through the relevant department in respect of which the
Commission is established. These arrangements do not prevent
a Royal Commission from voluntarily including a financial
statement in its reports.
Subclause (3) confirms that clause 11 does not prevent a Royal
Commission--
· entering into agreements or arrangements at no cost to
the Royal Commission. For example, a department may
agree to provide IT and accommodation to the Royal
Commission at no charge; or
· expending funds provided to the Royal Commission
from sources other than the Consolidated Fund.
For example, in relation to concurrent commissions,
the Commonwealth Government may fund the Royal
Commission, as with the joint Royal Commission into
Institutional Responses to Child Sexual Abuse.
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Division 3--Conduct of inquiries by Royal Commissions
Clause 12 confirms the autonomy of a Royal Commission in relation to
the manner in which it conducts its inquiry, subject to--
· the requirements of procedural fairness; and
· the letters patent; and
· the Bill, regulations made under the Bill, and any other
Act.
While the Bill imposes certain specific procedural fairness
requirements (e.g. clause 36 outlines the process that must be
followed in relation to adverse findings), it is not intended for
these provisions to exhaust the content or scope of a Royal
Commission's general obligation, imposed under subclause (a),
to afford procedural fairness in the conduct of its inquiry.
This clause confirms the flexibility and independence of a
Royal Commission in how it conducts its inquiry and, in
particular, the manner and form in which it obtains or receives
information. For example, a Royal Commission may
determine--
· how and when the subject matter specified in its terms
of reference will be dealt with;
· whether and when to adjourn the inquiry;
· whether there will be hearings and, if so, whether they
will be conducted in public or private;
· whether there will be interviews, community forums or
other discussions and, if so, whether they will be
conducted in public or in private;
· what documents it will require;
· which witnesses it seek evidence from;
· whether and when to convene or adjourn a hearing;
· whether it will call for submissions from the public or
particular individuals;
· whether it will commission research or expert reports;
· whether it will issue any discussion papers.
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Most of the provisions in the Bill do not depend on particular
investigatory methodologies being adopted by a Royal
Commission. For example, the protections from legal liability
(clause 39) and the admissibility provision (clause 40) apply
whether participation was voluntary or compelled by the Royal
Commission.
However, particular provisions do depend on the method of
inquiry adopted by the Royal Commission. For example--
· clauses 32 and 33, which abrogate legal professional
privilege and partially abrogate the privilege against
self-incrimination, only apply where evidence is
compelled by a Royal Commission (and not where
evidence is given voluntarily);
· clause 34 only requires a person to disclose information
or provide a document or other thing to which statutory
secrecy provisions apply, and only protects a person
from the consequences of doing so, if the information,
document or other thing is compelled by a Royal
Commission (and not where voluntarily disclosed or
provided);
· clause 42 only confers an entitlement to be paid on
those who are compelled or specifically requested to
attend and would not apply to voluntary attendances;
and
· clause 51 provides that it is not an offence for an
employer to take detrimental action against an employee
who unlawfully gave information (e.g., if information to
which statutory secrecy provisions applied was
voluntarily provided).
Clause 13 confirms that the chairperson of a Royal Commission can
determine, subject to the Bill and the letters patent, that
particular functions of the Royal Commission may be
performed by one or more commissioners separately.
As reflected in the legislative note to subclause (2), this
could allow the chairperson to determine that commissioners
can hold hearings in separate locations at the same time.
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Clause 14 provides that a Royal Commission is not bound by the rules of
evidence or any practices or procedures that apply to courts of
record. This clause confirms that the procedural fairness
requirement imposed under clause 12 does not require the Royal
Commission to adopt judicial procedures in the conduct of its
inquiry and can, instead, adopt flexible approaches to its
inquiry. This enables the Royal Commission to inform itself on
any matter as it sees fit.
This clause also has the effect that statutory evidential
privileges that apply in court proceedings (such as those under
Part 3.10 of the Evidence Act 2008) do not apply to Royal
Commissions.
Clause 15 confirms that a Royal Commission can determine whether, and
the extent to which, a person may appear or be legally
represented in an inquiry.
This clause confirms that the procedural fairness requirement
imposed under clause 12 does not require a Royal Commission
to allow all interested persons (or their legal representatives) to
participate in every aspect of an inquiry. Instead, it confers
broad powers on a Royal Commission in relation to the
participation in an inquiry, which preserves the flexibility for a
Royal Commission to conduct an inquiry as it considers
appropriate. For example, a Royal Commission may limit the
extent or nature of the participation of a person (or their legal
representative)--
· to those terms of reference that are relevant to the
person;
· by only permitting them to make oral or written
submissions;
· by not allowing them to examine or cross-examine
witnesses;
· by allowing multiple persons to be collectively
represented by a single legal representative (e.g. as an
advocate for the interests of victims or other relevant
class of persons);
· by not permitting them to tender evidence;
· by not allowing them to call witnesses.
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Subclause (2) provides guidance on the factors which a Royal
Commission may consider when allowing a person to appear,
participate or be legally represented in an inquiry. For example,
a Royal Commission may determine that a person under the age
of 18 years should only participate in the inquiry if represented
by, or with the consent of, a parent or guardian.
Clause 16 provides that a Royal Commission may issue practice
directions, statements or notes in relation to its inquiry, so long
as they are not inconsistent with the letters patent, the Bill and
any regulations made under the Bill, and any other Act or
regulations.
For example, a Royal Commission could issue practice
directions on procedural topics such as--
· obtaining leave to appear in an inquiry;
· making submissions to an inquiry;
· responding to notices to produce;
· responding to adverse findings proposed to be made in
an inquiry report;
· the conduct of hearings or other aspects of an inquiry.
Subclause (3) provides that any such practice directions,
statements or notes are not legislative instruments under the
Subordinate Legislation Act 1994. This ensures that practice
directions, statements and notes may be made under the Bill in a
timely manner without having to comply with the
administrative requirements relating to the making of legislative
instruments imposed by the Subordinate Legislation Act
(e.g. the obligation to prepare a regulatory impact statement).
Division 4--Powers of Royal Commissions for production of
documents and other things and obtaining evidence
Clause 17 gives a Royal Commission the power to require the production
of documents or other things or a person's attendance at the
Royal Commission. A Royal Commission can do so by serving
a notice to produce or a notice to attend.
This power enables a Royal Commission to compulsorily
acquire evidence, where necessary and appropriate to do so.
However, where persons are willing and lawfully able to
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provide information and documents to a Royal Commission
voluntarily, recourse to this power may not be required.
Subclause (1) provides that a Royal Commission may serve a
written notice on a person requiring them to--
· produce a document or other thing (within a particular
time and in a specified manner); or
· attend the Royal Commission to produce that document
or other thing; or
· attend the Royal Commission to give evidence for as
long as is required; or
· attend the Royal Commission to give evidence for as
long as is required and produce a document or other
thing.
The term "document" is not defined in the Bill for the purposes
of this power. However, the broad definition in section 38 of
the Interpretation of Legislation Act 1984 would apply for
this purpose.
Subclause (2) provides that a notice to produce or a notice to
attend must be in the prescribed form (if any) and served in
accordance with clause 19. Notices must also contain the
information set out in subclause (2)(b), which ensures that a
person receiving a notice is able to comply with its
requirements and is aware of the potential consequences of
non-compliance. For example, a notice must explain what
constitutes a reasonable excuse for failing to comply with the
notice and the process for objecting to the notice.
Subclause (3) provides that the requirement for a notice to be in
the prescribed form does not apply where a concurrent Royal
Commission is conducted under the Bill and under the law of
the Commonwealth or another State or Territory. This avoids
any operational impediments which may result if the other
relevant law requires additional matters to be included that are
not contemplated in the prescribed form.
If a person fails to comply with a notice without reasonable
excuse, the Royal Commission may seek enforcement of the
notice by the court under clause 23. Failure to comply with a
notice without reasonable excuse is also an offence under
clause 46.
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Clause 18 provides for the variation or revocation of a notice to attend or
produce, either of the Royal Commission's own volition or in
response to an objection by the person or body who receives the
notice. This process does not limit the Royal Commission's
discretion to vary or revoke a notice at any time.
Subclause (1) outlines a process for objecting to a notice.
The subclause provides that a person who wishes to object to a
notice may claim that the person has, or will have, a reasonable
excuse for failing to comply with the notice. The person may
also claim that the document or other thing specified in the
notice is not relevant to the terms of reference of the inquiry.
Subclause (2) provides a non-exhaustive list of the
circumstances which constitute a reasonable excuse for failing
to comply with a notice. For example, it is a reasonable excuse
not to comply if the information requested is the subject of
public interest immunity or if the person is prohibited by a court
order from disclosing the document or thing requested.
Failure to comply with a notice, without reasonable excuse, is
an offence under clause 46. The circumstances which constitute
a reasonable excuse set out in subclause (2) are also relevant for
the purposes this offence.
Subclause (3) provides that, if the Royal Commission is
satisfied that the person's claim is made out, the Royal
Commission may vary or revoke the notice by further written
notice.
Subclause (4) provides that a Royal Commission may vary or
revoke a notice on its own initiative, at any time and for any
reason. For example, a Commission may wish to vary or
revoke a notice where the evidence requested in a notice is no
longer necessary for the purposes of the inquiry or has been
obtained by other means, or where the Commission does not
wish to insist on the production of self-incriminating or legally
privileged evidence.
Subclause (5) provides that a notice varying or revoking a
notice to produce or attend must be served in accordance with
the procedure in clause 19.
Clause 19 outlines the procedure by which a notice to produce or attend
(or a notice varying or revoking such a notice) must be served
on a person.
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Subclause (1) provides that, except in the circumstances
outlined in subclause (2), a notice must be served not less than
7 days before the person is required to attend or otherwise
comply. A notice directed to a natural person must be served on
the person personally.
Subclause (2) sets out the circumstances in which a Royal
Commission may require the immediate attendance of a
person, rather than providing the 7 days' notice required by
subclause (1). Immediate attendance may be required where--
· a Royal Commission considers, on reasonable grounds,
that the person's immediate attendance is necessary to
avoid a specified prejudice occurring (i.e. the loss or
destruction of evidence, the commission of an offence,
the escape of the person to whom the notice is directed,
or serious prejudice to the Commission's inquiry); or
· the person on whom the notice is served consents to
immediate attendance (e.g. where a person is attending
voluntarily, but cannot lawfully provide certain
evidence without a notice being served, such as
evidence to which statutory secrecy provisions apply).
Subclauses (4) and (5) provide for the manner in which notices
are to be served on a body corporate.
Clause 20 provides for the process to be followed if a notice to attend is
issued to a person who is in a prison or a police gaol. In those
circumstances, a Royal Commission may give a written
direction (in the form prescribed, if any) that the person be
brought before the Commission as required by a notice to
attend.
Clause 21 enables a Royal Commission to require a person attending the
inquiry (whether voluntarily or in accordance with a notice to
attend) to give evidence or answer questions on oath or
affirmation.
Subclause (2) provides that oaths and affirmations may be
administered by a commissioner or a member of staff authorised
to do so by a commissioner.
If a person refuses to take an oath or affirmation, or give
evidence or answer questions on oath or affirmation, when
required to do so--
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· the chairperson may apply to the Supreme Court under
clause 23 for an order requiring the person to comply
with that requirement; and
· where the person is attending in accordance with a
notice to attend, that person may commit an offence
under clause 47.
If a person gives false evidence under oath or affirmation, the
person may commit the offence of perjury under section 324 of
the Crimes Act 1958. That person may also be guilty of the
offence of hindering, obstructing or causing serious disruption
to a Royal Commission inquiry under clause 49.
Clause 22 sets out powers in relation to documents and other things
produced to a Royal Commission.
Subclause (1) provides that a commissioner or authorised staff
member may--
· inspect any document or other thing produced to a
Royal Commission; and
· retain the document or other thing for as long as is
reasonably necessary for the purposes of the Royal
Commission's inquiry; and
· copy the document or other thing for the purposes of the
inquiry.
Subclause (2) requires a Royal Commission, in specified
circumstances, to return a document or thing if it ceases to be
reasonably necessary for the inquiry.
Subclause (3) confirms that the disclosure of information
under clause 44, and any concurrent Royal Commission, are
"purposes of an inquiry" for the purpose of this clause.
Clause 44 allows commissioners and staff to provide relevant
information to other persons and bodies (for example, the
Independent Broad-based Anti-corruption Commission or the
Director of Public Prosecutions).
Clause 23 enables the chairperson to apply to the Supreme Court for an
order to require a person to comply with a requirement of a
Royal Commission.
19
Subclause (1) provides that the chairperson may make an
application to the Supreme Court if satisfied that a person has
failed, without reasonable excuse, to comply with a notice to
produce or attend or a requirement to give evidence or answer
questions on oath or affirmation.
The conduct which would allow an application to be made may
also constitute an offence under clause 46 (in the case of failure
to comply with a notice to attend or produce) or clause 47
(in the case of a refusal to give evidence or answer questions on
oath or affirmation).
Subclause (2) provides that, in response to an application, the
Court may order the person to comply with the notice or
requirement within a period specified by the Court.
While not expressly provided for in the Bill, if a person fails to
comply with such an order, the Court may treat that failure as a
contempt and deal with it accordingly. Any punishment
imposed for such a contempt would relate to the failure to
comply with the Court order, rather than a requirement of the
Royal Commission, and thus would not give rise to any issues
of double jeopardy.
Division 5--Control of proceedings and publication of
information and evidence
Division 5 enables a Royal Commission to control access to its proceedings
and the publication of information it receives in the course of its inquiry.
In this Division, the term "proceedings" applies to any hearings, interviews or
other proceedings conducted by a Royal Commission.
The powers in this Division will facilitate, but not require, the conduct of
proceedings by Royal Commissions. It is a matter for the Royal Commission
to determine what proceedings (if any) it wishes to conduct for the purposes
of its inquiry. The powers in this Division are not intended to create any
presumption that proceedings, or proceedings of a particular type, must be
conducted by a Royal Commission.
The powers in the Bill are consistent with the model established by the Open
Courts Act 2013 for Victorian courts and VCAT. This reflects the fact that
Royal Commissions, like courts, may be asked to examine sensitive subject
matter, and therefore require the equivalent capacity to control access to and
publication of any sensitive information they receive.
20
Clause 24 enables a Royal Commission to restrict access to its
proceedings.
Subclause (1) provides that a commissioner may make an order
excluding any person from a proceeding if--
· prejudice or hardship might be caused to any person,
including harm to their safety or reputation.
For example, this might arise where the evidence being
given is of a personal nature. Harm to safety may be a
relevant consideration where a witness giving evidence
places that witness or another person (e.g. a family
member) in danger;
· the nature and subject matter of the proceeding is
sensitive. This encompasses a broad range of
circumstances.
For example, where evidence is to be given about
children, or in relation to a matter that could prejudice
national security or intergovernmental relations;
· there is a possibility of prejudice to legal proceedings;
· the conduct of the proceeding would be more efficient
and effective.
For example, where holding a closed hearing may
facilitate the Royal Commission obtaining relevant
information from a witness or minimise the time and
cost of proceedings;
· the commissioner otherwise considers the exclusion
appropriate.
Subclause (1) is not intended to create a presumption that Royal
Commission proceedings will be conducted publicly, nor is it
intended to limit in any way the flexibility of a Royal
Commission to conduct its proceedings as it considers
appropriate.
Subclause (2) provides that an order restricting access to
proceedings must be posted on the door of the place where the
proceeding is being conducted or in another conspicuous place
where notices are usually posted. This will ensure persons are
aware of and able to comply with the order, and understand the
21
consequences for failing to comply (which is an offence under
clause 48).
If a person knowingly or recklessly contravenes an order made
under this clause, the person will commit an offence under
clause 48.
Subclause (3) provides that an order made under this clause is
not a legislative instrument within the meaning of the
Subordinate Legislation Act 1994. This is for similar reasons
to why practice directions, statements or notes are not
legislative instruments under clause 16(3).
Clause 25 enables a Royal Commission to expel a person who disrupts its
proceedings.
If a person refuses to leave the proceeding when ordered to do
so by a Royal Commission under this clause, the person may
commit the offence of hindering, obstructing or causing serious
disruption to the Royal Commission proceeding under
clause 49.
Clause 26 enables a Royal Commission to control the publication of
information or evidence relating to its inquiry.
Subclause (1) allows a commissioner to make an order
prohibiting or restricting the publication of--
· any information that could identify a person who has
given, or will give, information or evidence to the Royal
Commission for the purposes of an inquiry (e.g. to
protect the safety of that person); or
· any information or evidence given to the Royal
Commission for the purposes of an inquiry.
This includes all types of information provided by any
person and in any manner.
Subclause (2) sets out the circumstances in which an order may
be made under this clause. These are the same circumstances in
which an order to restrict access to proceedings may be made
under clause 24(1).
Subclauses (3) and (4) provide for the manner in which affected
persons are to be informed of an order made under this clause.
If the order is made during a proceeding, the order must be
posted on the door of the place where the proceeding is being
22
conducted or in another conspicuous place. If the order is made
in relation to persons to whom information which is the subject
of the order has been given by the Royal Commission, a copy of
the order must be given to those persons.
Subclause (5) provides that an order made under this clause is
not a legislative instrument within the meaning of the
Subordinate Legislation Act 1994. This is for similar reasons
to why practice directions, statements or notes are not
legislative instruments under clause 16(3).
If a person knowingly or recklessly contravenes an order made
under this clause, the person will commit an offence under
clause 48.
Division 6--Entry, search and seizure powers of Royal
Commissions
Clause 27 defines authorised officer for the purposes of the Division.
An authorised officer is either the chairperson of a Royal
Commission or a person authorised by the chairperson for this
purpose.
Clause 28 sets out the procedure for obtaining a search warrant.
Subclause (1) provides that an authorised officer may apply to
the Magistrates' Court for a search warrant where the officer
believes on reasonable grounds that it is necessary to enter
particular premises (including a vehicle, vessel or aircraft on
those premises) or a particular vehicle, vessel or aircraft for the
purposes of an inquiry.
Subclause (2) provides that a magistrate may issue a search
warrant if satisfied by evidence on oath or affirmation that there
are reasonable grounds for the authorised officer's belief.
The warrant may authorise a police officer or prescribed person
to--
· enter and search the premises or vehicle, and inspect
any document or other thing found there; and
· make a copy of any document that the person
reasonably considers may be relevant to the inquiry; and
· take possession of any document or other thing that the
person considers may be relevant to the inquiry.
23
A warrant must contain the information set out in subclause (3)
and must be in the prescribed form (if any). For example, a
warrant must set out the purpose for which the search is
required and any conditions to which the warrant is subject.
Subclause (5) provides that the rules contained in the
Magistrates' Court Act 1989 apply to warrants under this
clause (except as otherwise provided by the Bill).
Clause 29 outlines the procedure that must be followed when a person is
executing a search warrant.
The clause is similar to the procedure for the execution of
search warrants under other Victorian legislation (e.g. the
Independent Broad-based Anti-corruption Commission
Act 2011).
Clause 30 provides for the handling of documents or other things seized
pursuant to a warrant.
Subclause (1) requires a copy of any document or other thing
seized to be made and provided to the occupier of the relevant
premises, on request. This requirement only applies to specified
documents and other things that can be readily copied, and does
not apply where to provide a copy would be contrary to the
public interest.
Subclause (2) provides that, if a copy is not provided, a receipt
for the item (in the prescribed form, if any) must be provided to
the occupier as soon as practicable.
Clause 31 requires a Royal Commission to--
· take all reasonable steps to return a seized document or
other thing which is required as evidence in a legal
proceeding; and
· immediately return a seized document or other thing
that is no longer needed for the purposes of a Royal
Commission's inquiry, a report on an inquiry, or legal
proceedings in relation to an inquiry.
24
Division 7--Application of privileges and statutory secrecy to
Royal Commissions
Division 7 sets out the application of statutory secrecy provisions and certain
privileges to Royal Commission inquiries.
Privileges and immunities
Consistent with the current position under the Evidence (Miscellaneous
Provisions) Act 1958, the Bill abrogates legal professional privilege and
partially abrogates the privilege against self-incrimination. These privileges
are only abrogated for the purposes of Royal Commissions, and not Boards
of Inquiry or Formal Reviews.
While these privileges are abrogated, a Royal Commission could elect not
to require the production of evidence to which these privileges apply.
Further, where privileged evidence is provided, the Bill allows the Royal
Commission to take steps to ensure that privilege is maintained in other
contexts. For example, a Royal Commission could receive privileged
testimony in private or make orders to prohibit the publication of privileged
evidence. The confidentiality obligations on Royal Commission officers and
the offence for taking advantage of information in clause 45 also protect
against the misuse of privileged evidence.
Privileges and immunities applying at common law which are not abrogated
by the Bill apply in relation to Royal Commission inquiries. For example,
public interest immunity and parliamentary privilege apply, as is
acknowledged in clause 18(2) (which sets out reasonable excuses for failing
to comply with a requirement to give evidence to a Royal Commission).
The statutory privileges in the Evidence Act 2008 do not apply to Royal
Commission inquiries.
Statutory secrecy provisions
The Bill provides that statutory obligations of secrecy (with limited
exceptions) do not prohibit a person from complying with a requirement to
give documents or evidence to a Royal Commission. However, such
materials cannot be given voluntarily.
The mechanisms outlined above with respect to privileged evidence would
also protect, or allow for the protection of, evidence to which statutory
secrecy provisions would ordinarily apply.
25
Clause 32 abrogates legal professional privilege.
Subclause (1) provides that a person cannot refuse to comply
with a requirement to give evidence to a Royal Commission on
the basis that the evidence is the subject of legal professional
privilege.
Subclause (2) confirms that privilege does not cease to attach to
the evidence just because it was given to a Royal Commission.
Clause 33 partially abrogates the privilege against self-incrimination.
A person cannot refuse to comply with a requirement to give
evidence to a Royal Commission on the basis that the evidence
might tend to incriminate the person or make the person liable
to a penalty, except where the privilege is claimed in relation to
proceedings which have been commenced but not yet finalised.
Clause 40 prevents self-incriminating evidence being used
against the person in subsequent proceedings, except in limited
circumstances.
Clause 34 ensures that a Royal Commission can compel the production of
evidence to which statutory secrecy provisions would ordinarily
apply.
Subclause (1) provides that a person cannot refuse to comply
with a requirement to give information or produce a document
or other thing to a Royal Commission on the basis that any
statutory secrecy provisions apply. Subclause (2) protects a
person who provides such documents or evidence from any
liability for complying with the requirement.
Subclause (3) provides that, despite subclause (1), statutory
secrecy provisions will continue to apply where the provision--
· specifically applies to the giving of information or
production of documents to a Royal Commission; or
· is prescribed by regulations made under this Bill.
Where a statutory secrecy provision continues to apply, it will
be a reasonable excuse for a person to fail to comply with a
requirement of a Royal Commission to produce evidence to
which the provision applies. Further, the person will not be
protected from any liability arising from the disclosure of
evidence to the Commission contrary to the secrecy provision.
26
Subclause (4) provides that, where information or documents
are provided to a Royal Commission as a consequence of the
operation of subclause (1), the Royal Commission is not bound
by the relevant statutory secrecy provisions. However, the
confidentiality obligations in clause 43 attaching to Royal
Commission officers will apply.
Division 8--Reports of Royal Commissions
Clause 35 requires a Royal Commission to deliver a report of its inquiry to
the Governor, and sets out procedural requirements for those
reports (including matters in relation to their content).
Subclause (1) requires the Royal Commission to deliver its
reports (whether interim or final) to the Governor by the time
specified in its letters patent or, if no time is specified, as soon
as practicable after the Royal Commission completes its
inquiry. Clause 37 facilitates the Parliamentary tabling of a
report once received by the Governor.
Subclause (2) confirms that a report may contain any
recommendations that the Royal Commission considers
appropriate.
Consistent with the independence of the Royal Commission and
the flexibility necessary to enable a Royal Commission to be
able to conduct an inquiry into any matter, the clause does not
provide further requirements for what should or should not be
included in a report. However, other relevant obligations
include--
· clause 36, which imposes certain requirements if
adverse findings against a person are proposed to be
included in a report; and
· clause 37, which provides that parts of a report can be
omitted from the version that is tabled in Parliament, if
there are appropriate reasons for doing so; and
· the general law, which has the effect that a Royal
Commission cannot make any legal findings in respect
of a person's guilt, innocence or liability.
27
Clause 36 imposes particular procedural fairness requirements on a Royal
Commission that intends to make an adverse finding against a
person. It is not intended for this clause to exhaust the content
or scope of a Royal Commission's general obligation, imposed
under clause 12(a), to afford procedural fairness in the conduct
of its inquiry (generally) and in the preparation of its reports
(specifically).
The clause requires the Royal Commission to--
· ensure that the person is aware of the matters on which
the proposed finding is based and has had an
opportunity to respond on those matters; and
· consider any response to the proposed adverse finding
provided by the person; and
· fairly set out any responses in its report, if the adverse
finding is included in it.
It is not intended that, to satisfy the obligation to set out any
responses fairly, the responses would need to be replicated in
full. While this may be appropriate in some cases, it is a matter
for each Royal Commission to determine what would satisfy
this requirement in the context and circumstances of its inquiry
and report.
Clause 37 facilitates the Parliamentary tabling of Royal Commission
reports.
The clause requires the Premier to table or transmit a Royal
Commission's report within 30 days of it being received by the
Governor. While leaving the procedural requirements for
tabling (on a sitting day) largely to Parliament, the clause
imposes standard procedural requirements for transmission
(on a non-sitting day).
Whether the report of the Royal Commission is tabled or
transmitted, the clause provides that the report is absolutely
privileged and that sections 73 and 74 of the Constitution Act
1975 apply to the report. The effect of these provisions is that
the Royal Commission report attracts the same privileges and
protections that proceedings of Parliament have.
The clause facilitates the report (or part of the report) not being
tabled or transmitted, if the Premier considers it appropriate not
to do so. For example--
28
· the Royal Commission may request that a part of its
report be kept confidential; or
· certain information in the report may be sensitive
personal information (such as the circumstances of an
individual's death); or
· the publication of the report, or relevant part of the
report, could prejudice legal proceedings.
Whatever the reason, the Premier must provide a statement
setting out the reasons for the omission. The clause facilitates
the report (or part of the report) being subsequently tabled or
transmitted if it later becomes appropriate to do so.
Division 9--Protection from legal liability
Clause 38 provides that a current or former commissioner cannot be
compelled to give evidence in relation to the Royal Commission
in any criminal, civil, administrative or disciplinary
proceedings. This protection promotes and is consistent with
the independence of commissioners and Royal Commissions.
Subclause (2) confirms that this restriction does not prevent a
person who is or was a commissioner from giving evidence
voluntarily in subsequent proceedings.
This clause is not intended to alter or vary section 85 of the
Constitution Act 1975, which provides for the jurisdiction and
powers of the Supreme Court (and alterations or variations).
Clause 39 provides protection to those who conduct, assist or participate
in Royal Commission inquiries. These protections mirror those
which apply in proceedings of the Supreme Court.
Subclauses (1) and (2) provide that in respect of the
performance of their functions under the Bill, commissioners
and members of staff of a Royal Commission (including any
Australian legal practitioners engaged to assist a Royal
Commission as counsel assisting or as solicitors instructing),
have the same protection and immunity as a judge of the
Supreme Court.
Subclause (3) provides that legal representatives of persons
appearing before an inquiry have the same protection and
immunity as they would if representing a party in the Supreme
Court.
29
Subclause (4) provides that a person who gives information,
evidence, documents or other things to a Royal Commission has
the same protection and immunity as they would if the person
were a witness in the Supreme Court.
Division 10--Royal Commissions and courts
Clause 40 limits the circumstances in which evidence provided to a Royal
Commission by a person can be used against the person in other
proceedings.
The clause provides that any answer, information, document or
thing given or produced by a person to a Royal Commission
(and the fact it was so given or produced), cannot be admitted
against that person in any other proceeding.
Meaning of "other proceedings"
For the purposes of this clause, other proceedings is defined
broadly to mean any criminal, civil or administrative
proceedings before a court or tribunal or any disciplinary
proceedings, including any proceedings that were pending when
the evidence was given to the Royal Commission.
Evidence to which the protection applies
The protection extends to all types of evidence provided to a
Royal Commission, including but not limited to--
· evidence compelled using coercive powers;
· evidence provided voluntarily, either by a person's own
volition or in response to an informal information
request (for example, a request for a witness statement);
· privileged evidence required to be given as a result of
the abrogation of legal professional privilege and the
partial abrogation of the privilege against self-
incrimination;
· evidence required to be given as a result of the
disapplication of statutory secrecy provisions.
This protection will support the effective conduct of Royal
Commission inquiries, by allowing persons to provide a Royal
Commission with relevant information without fear that it will
be used against them. By extending the protection to evidence
which is provided voluntarily (rather than coercively obtained),
30
it also ensures that Royal Commissions can rely on the
cooperation of witnesses and are not forced to exercise their
formal powers of investigation.
Exceptions
There are 3 exceptions--
· where the other proceeding relates to an offence against
this Bill (e.g. the offence of giving false or misleading
information to a Royal Commission); and
· where the other proceeding relates to an offence against
section 254 (destruction of evidence) or 314 (perjury) of
the Crimes Act 1958 in relation to the Royal
Commission; and
· where the relevant document or other thing was
obtained, or could have been obtained, independently of
its production to the Royal Commission (either before
or after its production) by the person seeking to use the
document or other thing in the other proceedings.
This ensures a prosecutorial body can use such
documents and other things that were, or could have
been, obtained independently of the Royal
Commission's inquiry. Unlike the first 2 exceptions,
this exception does not extend to the fact that the
relevant document or thing was produced.
Self-incriminating evidence
In the case of self-incriminating evidence, the protection
balances the limitation on the rights of individuals caused by the
partial abrogation of the privilege against self-incrimination in
clause 33.
Thus, the Bill ensures that a Royal Commission has access to as
much information as possible (through the partial abrogation of
the privilege), while at the same time adequately protecting the
rights of those who are compelled to provide self-incriminating
evidence.
31
Clause 41 provides that the chairperson of a Royal Commission, on the
chairperson's own motion or in response to a request, may refer
a question of law arising in an inquiry to the Supreme Court.
This provides an alternative to judicial review proceedings.
It is intended that questions of law that may be referred could
include the--
· extent and nature of the Royal Commission's powers;
and
· application of privileges; and
· application of statutory secrecy requirements.
Division 11--Assistance for witnesses
Clause 42 provides an entitlement for expenses and allowances to be paid,
in accordance with a prescribed scale, to a person who is
compelled or specifically requested to attend a Royal
Commission.
For example, an amount in respect of the following expenses
and allowances could be prescribed and paid by the Royal
Commission--
· travel expenses;
· accommodation expenses;
· meal allowances;
· lost income allowances;
· child minding expenses;
· expert witness fees.
The clause also provides that the entitlement does not apply in
respect of--
· concurrent Royal Commissions (i.e. those contemplated
in clause 7), unless the letters patent provide otherwise;
and
· a Royal Commission which is not authorised to incur
expenses or financial obligations out of the
Consolidated Fund (see clause 11).
32
Division 12--Confidentiality, sharing and use of information
Division 12 creates certain criminal offences relating to the confidentiality of
Royal Commission information and materials. This Division is intended to
support the effective operation of Royal Commissions by ensuring
information is treated appropriately by Royal Commission officers and other
persons.
Clause 43 promotes the confidentiality of Royal Commission processes by
creating an offence for a current or former Royal Commission
officer to knowingly disclose information that the officer
acquired as a result of the officer's role, or in the performance of
the officer's functions, in relation to the Royal Commission,
subject to specified exceptions.
The clause provides that the offence is not committed if the
disclosure is--
· in the course of the performance of the officer's
functions; or
· for the purposes of relevant criminal proceedings; or
· if the information is in the public domain at the time of
the disclosure (otherwise than as a result of a disclosure
that the person knows or ought to have known was
unlawful); or
· otherwise authorised or required under this Bill
(e.g. clause 44) or another statute.
The maximum penalty for this offence is 120 penalty units or
imprisonment for 12 months.
Clause 44 provides that a commissioner (or authorised person) may,
despite clause 43, disclose information, documents and things to
another person or body, if the commissioner (or authorised
person) considers that the--
· information, document or other thing is relevant to the
performance of the functions of the other person or
body; and
· it is appropriate to provide that information, document
or other thing to the other person or body.
33
Subclause (2) outlines a process for the document or other thing
to be returned if it ceases to be reasonably necessary for the
other person or body to continue to retain the document or other
thing.
Clause 45 provides an offence for a person to take advantage of
information provided to them by a Royal Commission (or Royal
Commission officer) during the course of an inquiry, unless the
information is in the public domain (otherwise than as a result
of a disclosure that the person knows or ought to have known
was unlawful). For example, this clause ensures that
information provided to a person confidentially by a Royal
Commission in the interests of procedural fairness would not be
unfairly utilised or appropriated.
The maximum penalty for this offence is 120 penalty units or
imprisonment for 12 months.
Division 13--Offences
Division 13 creates certain criminal offences relating to Royal Commissions.
These offences are intended to support the effective operation of Royal
Commissions, by--
· ensuring persons involved in an inquiry comply with
requirements of a Royal Commission and do not engage in
conduct which could impede or frustrate the Royal
Commission's inquiry; and
· protecting persons who participate in or otherwise assist a
Royal Commission's inquiry (e.g. from detrimental action in
response to their participation).
In most cases, the offences apply to conduct which contravenes a specific
requirement under the Bill. Many of the offences include a reasonable
excuse exception. Clause 18(2) non-exhaustively lists various matters which
may constitute a reasonable excuse for failing to comply with a requirement
of a Royal Commission.
The specific offences in the Bill supplement the general offences under the
Crimes Act 1958 and other Acts, which may also apply to conduct arising in
the course of, or in relation to, a Royal Commission.
Clause 46 creates an offence for failing to comply (whether in whole or in
part) with a notice to produce or a notice to attend issued under
clause 17, without reasonable excuse.
34
The reasonable excuses for failing to comply with a notice
listed non-exhaustively in clause 18(2) would be relevant for the
purpose of determining whether a person has committed an
offence under this clause.
The maximum penalty for this offence is 240 penalty units or
imprisonment for 2 years.
Clause 47 creates an offence for failing to take an oath or make an
affirmation or answer a question when required to do so by a
Royal Commission, without reasonable excuse.
This offence only applies where a person is attending a Royal
Commission in accordance with a notice to attend, and not
where a person is attending voluntarily. Persons attending
voluntarily are not required to answer questions. While persons
attending voluntarily can be required to give evidence on oath
or affirmation, refusal to do so will not constitute an offence.
If a person attending voluntarily refused to take an oath or
affirmation or to answer a question on oath or affirmation, the
Royal Commission could issue a notice to attend to that person.
Continued refusal to comply with such a requirement when
attending in response to such a notice would then constitute an
offence.
The maximum penalty for this offence is 240 penalty units or
imprisonment for 2 years.
Subclause (2) provides that a person does not commit an
offence under the clause unless, before the person was required
to take an oath or affirmation or answer a question, the Royal
Commission informed the person that any refusal or failure to
do so without reasonable excuse is an offence.
Clause 48 creates an offence for a person to contravene--
· an order restricting access to Royal Commission
proceedings made under clause 24; or
· an order restricting or prohibiting the publication of
information made under clause 26.
The offence applies where such an order is in force and the
person knows, or is reckless as to whether, the order is in force.
35
The maximum penalty for this offence is 600 penalty units or
imprisonment for 5 years. Subclause (2) provides that this is an
indictable offence. This is consistent with the equivalent
offence under the Open Courts Act 2013, on which the
exclusion and non-publication powers in the Bill are modelled.
Clause 49 creates an offence for a person to engage in conduct that
hinders, obstructs or causes serious disruption to a Royal
Commission proceeding, where the person intends to hinder,
obstruct or disrupt the proceeding or is reckless as to whether
the conduct will have such an effect.
This offence will, for example, apply to the following types of
conduct--
· disrupting proceedings by engaging in threatening or
violent behaviour;
· preventing any person from attending an inquiry or
producing a document or thing to an inquiry;
· engaging in any conduct with the intention that any
person will give false or misleading information to, or
withhold information from, an inquiry (e.g. bribing,
threatening or deceiving witnesses).
The maximum penalty for this offence is 120 penalty units or
imprisonment for 12 months.
Clause 50 creates offences for knowingly giving false or misleading
evidence to a Royal Commission.
Subclause (1) makes it an offence for a person to knowingly
make a false or misleading statement.
Subclause (2) makes it an offence for a person to knowingly
produce a false or misleading document or other thing, unless
that person indicates to the Royal Commission which part or
parts of the document or other thing are false or misleading and,
to the extent practicable, provides the correct information.
The maximum penalty for this offence is 120 penalty units or
imprisonment for 12 months.
If any false or misleading evidence is given to a Royal
Commission under oath or affirmation, the offence of perjury
under section 314 of the Crimes Act 1958 may also apply.
36
Clause 51 creates an offence for an employer to dismiss or take other
detrimental action against an employee (or to threaten to do so)
because that employee has given information to a Royal
Commission. The offence also applies where the employee has
not given any information to a Royal Commission but where the
employer believes that the employee has or will.
The maximum penalty for this offence is 120 penalty units or
imprisonment for 12 months.
Subclause (2) creates a defence to this offence. It provides that
an employer does not commit the offence if the fact that the
employee gave information to the Royal Commission (or the
employer's belief that the employee did or would do so) was not
a substantial reason for the dismissal or other detrimental
action.
In proceedings for this offence, the defendant would bear the
evidential burden of pointing to evidence that raises the
defence. However, once raised, the prosecution would bear the
legal burden to disprove the defence by establishing, beyond
reasonable doubt, that the defendant committed the offence.
Subclause (3) creates further exceptions to the offence.
It provides that the offence does not apply (and, thus, an
employee is not protected from detrimental action) where
information--
· was unlawfully given by the employee; or
· was false or misleading such that the employee has
committed an offence under clause 50 or perjury under
section 314 of the Crimes Act 1958.
Clause 52 creates an offence for a person to take detrimental action against
a person because that person is or was a commissioner.
This is similar to the offence in section 107 of the Public
Administration Act 2004, which protects public officials from
detrimental action. That offence does not apply to
commissioners, as the Bill separately provides that
commissioners are not public officials for the purpose of the
Public Administration Act 2004 (see clause 138).
The maximum penalty for this offence is 240 penalty units or
imprisonment for 2 years.
37
Subclause (2) creates a defence to this offence. It provides that
a person does not commit the offence if the fact that the other
person is a commissioner was not a substantial reason for the
taking of the detrimental action.
As is the case for clause 51, in proceedings for this offence the
defendant would bear the evidential burden of pointing to
evidence that raises the defence. However, once raised, the
prosecution would bear the legal burden to disprove the defence
by establishing, beyond reasonable doubt, that the defendant
committed the offence.
PART 3--BOARDS OF INQUIRY
Part 3 of the Bill provides for the establishment and conduct of Boards of
Inquiries, including--
· the powers of Boards of Inquiry;
· procedures and protections in relation to Boards of Inquiry;
· offences in relation to Boards of Inquiry.
Division 1--Establishment of Boards of Inquiry
Clause 53 provides for the way in which a Board of Inquiry is established.
The Bill provides that a Board of Inquiry can be established by
the Governor in Council appointing, on the recommendation of
the Premier and by Order in Council, one or more natural
persons to be a Board of Inquiry to inquire into and report on
specified terms of reference.
Subclause (1) requires any such Order in Council
(the establishing Order) to be published in the Government
Gazette. Section 153 of the Evidence Act 2008 provides
certain evidential presumptions that will apply once the
establishing Order is published in the Government Gazette.
Subclause (2)(a) provides that certain matters must be specified
in the establishing Order. For example, the establishing Order
must specify the terms of reference of the Board of Inquiry.
As reflected in the legislative note to subclause (2), clause 123
restricts the scope and powers of a Board of Inquiry in relation
to independent entities.
38
Subclause (2)(b) provides that additional matters may be
specified in the establishing Order. For example, the
establishing Order may specify whether the Board of Inquiry
can incur expenses from the Consolidated Fund and, if so, the
maximum amount that can be incurred. Subclause (2)(b)(vii)
provides additional flexibility by confirming that the Governor
in Council (on the recommendation of the Premier) may specify
any other matters which seems appropriate. Such matters may
include--
· the location(s) at which any hearings of the Board of
Inquiry may or must be held;
· the relationship between the Board or Inquiry and other
relevant inquiries, such as police investigations and
coronial inquests;
· previous inquiries, investigation or reports to which the
Board of Inquiry must have regard.
Clause 54 confirms that, similarly to concurrent Royal Commissions, a
Board of Inquiry established under this Bill may operate
concurrently with other functions conferred on its members by
other jurisdictions.
Clause 55 provides that a Board of Inquiry may be converted into a Royal
Commission and that the post-conversion inquiry continues to
have the benefit of everything done by the pre-conversion
inquiry. This provision enables the Government to convert a
Board of Inquiry into a Royal Commission if it becomes
apparent that the additional powers conferred on a Royal
Commission are necessary to properly investigate the specified
terms of reference.
Division 2--Arrangements to facilitate Boards of Inquiry
Clause 56 provides for the employment and engagement of staff and
services to support a Board of Inquiry. Except in relation to
counsel assisting, this clause has an equivalent effect to clause 9
in relation to Royal Commissions.
Counsel assisting
Unlike Royal Commissions, it is not expected that Boards of
Inquiry would always require or desire a role of counsel
assisting the Board of Inquiry. Accordingly, clause 56 provides
39
that the Board of Inquiry can only engage a person as counsel
assisting if authorised to do so by the establishing Order.
If the establishing Order permits the engagement of a person as
counsel assisting, the arrangements for the role of counsel
assisting are equivalent to those for Royal Commissions under
clause 9.
Clause 57 provides that the public sector values in sections 7(1)(a)(i)
and (c)(iii) of the Public Administration Act 2004 do not
apply to a member of staff in respect of their employment or
engagement with a Board of Inquiry. This clause has the
equivalent effect to clause 10 in relation to Royal Commissions.
Clause 58 provides that a Board of Inquiry may incur expenses and meet
financial obligations from the Consolidated Fund only if the
establishing Order authorises such payment and, if so, only to
the extent of the maximum amount that is specified in the
establishing Order. This clause has the equivalent effect to
clause 11 in relation to Royal Commissions.
Division 3--Conduct of inquiries by Boards of Inquiry
Clause 59 confirms the autonomy of a Board of Inquiry in relation to the
manner in which it conducts its inquiry, subject to--
· the requirements of procedural fairness;
· the establishing Order;
· the Bill, regulations made under the Bill, and any other
Act.
This clause has the equivalent effect to clause 12 in relation to
Royal Commissions.
Clause 60 confirms that the chairperson can determine, subject to the Bill
and the establishing Order, that particular functions of the
Board of Inquiry may be performed by one or more members
separately. This clause confers the same power on the
chairperson of a Board of Inquiry as is conferred on the
chairperson of a Royal Commission under clause 13.
40
Clause 61 provides that a Board of Inquiry is not bound by the rules of
evidence or any practices or procedures that apply to courts of
record. This clause has the equivalent effect to clause 14 in
relation to Royal Commissions.
Clause 62 confirms that a Board of Inquiry can determine whether, and the
extent to which, a person may appear or be legally represented
in an inquiry. This clause gives Boards of Inquiry the same
power that Royal Commissions have under clause 15.
Clause 63 provides that a Board of Inquiry may issue practice directions,
statements or notes in relation to its inquiry. This clause gives
Boards of Inquiry the same power that Royal Commissions
have under clause 16.
Division 4--Powers of Boards of Inquiry for production of
documents and other things and obtaining evidence
Division 4 confers certain coercive powers on a Board of Inquiry to compel
the attendance of witnesses, the giving of evidence, and the production of
documents and other things. However, unlike a Royal Commission, a Board
of Inquiry does not have entry, search and seizure powers.
Privileges and immunities
Unlike in respect of a Royal Commission, the Bill does not abrogate legal
professional privilege or the privilege against self-incrimination in respect of
Boards of Inquiry.
Privileges and immunities applying at common law will apply in relation to
Boards of Inquiry. For example, the privilege against self-incrimination,
public interest immunity and parliamentary privilege apply, as is
acknowledged in clause 65(2) (which sets out a non-exhaustive list of
reasonable excuses for failing to comply with a requirement to give evidence
to a Board of Inquiry).
The statutory privileges in the Evidence Act 2008 do not apply to Boards of
Inquiry.
Clause 64 gives a Board of Inquiry the power to require the production of
documents or other things or a person's attendance at the Board
of Inquiry. A Board of Inquiry can do so by serving a notice to
produce or a notice to attend. These powers are the same as
those of a Royal Commission under clause 17.
41
Clause 65 provides for the variation or revocation of a notice to attend or
produce, either of the Board of Inquiry's own volition or in
response to an objection by the person or body who receives the
notice.
This clause is in similar terms to clause 18 in relation to
Royal Commissions. However, the non-exhaustive list in
subclause (2) of the circumstances which constitute a
reasonable excuse for failing to comply with a notice includes
additional circumstances which do not apply in the case of a
Royal Commission inquiry. This reflects the fact that legal
professional privilege and the privilege against self-
incrimination apply to Boards of Inquiry.
Clause 66 outlines the procedure by which a notice to produce or attend
(or a notice varying or revoking such a notice) must be served
on a person. The requirements for service are the same as for
Royal Commissions under clause 19.
Clause 67 provides for the process to be followed if a notice to attend is
issued to a person who is in a prison or a police gaol. This is
the same process that Royal Commissions are required to
follow under clause 20.
Clause 68 enables a Board of Inquiry to require a person attending the
inquiry (whether voluntarily or in accordance with a notice to
attend) to give evidence or answer questions on oath or
affirmation. This clause gives Boards of Inquiry the same
powers that Royal Commissions have under clause 21.
Clause 69 sets out powers in relation to documents and other things
produced to a Board of Inquiry. This clause gives Boards of
Inquiry the same powers that Royal Commissions have under
clause 22.
Clause 70 enables the chairperson of a Board of Inquiry to apply to the
Supreme Court for an order to require a person to comply with a
requirement of the Board of Inquiry. This clause gives Boards
of Inquiry the same power that Royal Commissions have under
clause 23.
42
Division 5--Control of proceedings and publication of
information and evidence
Division 5 enables a Board of Inquiry to control access to its proceedings
and the publication of information it receives in the course of its inquiry.
This Division has the same purposes as Division 5 of Part 2 has for Royal
Commissions. However, unlike for a Royal Commission, the public may
not expect a Board of Inquiry to hold public hearings and, if the Board of
Inquiry does, the public may not expect the hearings to be held with the same
level of formality. In any event, it is a matter for the Board of Inquiry to
determine what proceedings (if any) it wishes to conduct for the purposes of
its inquiry.
Clause 71 enables a Board of Inquiry to restrict access to its proceedings.
This clause gives Boards of Inquiry the same powers that Royal
Commissions have under clause 24.
Clause 72 enables a Board of Inquiry to expel a person who disrupts its
proceedings. This clause gives Boards of Inquiry the same
powers that Royal Commissions have under clause 25.
Clause 73 enables a Board of Inquiry to control the publication of
information or evidence relating to its inquiry. This clause
gives Boards of Inquiry the same powers that Royal
Commissions have under clause 26.
Division 6--Application of statutory secrecy to Boards of Inquiry
Division 6 sets out the application of statutory secrecy provisions to Boards
of Inquiry.
Clause 74 ensures that a Board of Inquiry can compel the production of
evidence to which statutory secrecy provisions would ordinarily
apply. The power conferred on a Board of Inquiry under this
clause is equivalent to that conferred on a Royal Commission
under clause 34, except that (unlike a Royal Commission) a
Board of Inquiry must expressly require the person to give the
information or produce the document or other thing despite the
statutory provision.
43
Division 7--Reports of Boards of Inquiry
Clause 75 requires a Board of Inquiry to deliver a report of its inquiry to
the Governor, and sets out procedural requirements for such
reports (including matters in relation to the content of reports).
This clause imposes the same requirements on Boards of
Inquiry as are imposed on Royal Commissions under clause 35.
Clause 76 imposes particular procedural fairness requirements on a Board
of Inquiry that intends to make an adverse finding against a
person. This clause imposes the same requirements on Boards
of Inquiry as are imposed on Royal Commissions under
clause 36.
Clause 77 facilitates the Parliamentary tabling and publication of Board of
Inquiry reports. The clause imposes the same tabling and
publication requirements and processes in relation to Boards of
Inquiry as apply in relation to Royal Commissions under
clause 37.
Division 8--Protection from legal liability
Clause 78 provides that a current or former member of a Board of Inquiry
cannot be compelled to give evidence in relation to the Board of
Inquiry in any criminal, civil, administrative or disciplinary
proceedings. This clause confers the same protections as are
conferred in relation to Royal Commissions under clause 38.
Clause 79 provides protection to those who conduct, assist or participate in
a Board of Inquiry. This clause confers the same protections as
are conferred in relation to Royal Commissions under clause 39.
Division 9--Boards of Inquiry and courts
Clause 80 limits the circumstances in which evidence given to a Board of
Inquiry can be used against the person who provided it in other
proceedings. This clause imposes the same limitations in
relation to evidence given to a Board of Inquiry as are imposed
under clause 40 in relation to evidence given to a Royal
Commission.
44
Clause 81 provides that the chairperson of a Board of Inquiry, on his or
her own motion or in response to a request, may refer a question
of law arising in an inquiry to the Supreme Court. This clause
gives the chairperson of a Board of Inquiry the same power that
the chairperson of a Royal Commission has under clause 41.
Division 10--Assistance for witnesses
Clause 82 provides an entitlement for expenses and allowances to be paid,
in accordance with a prescribed scale, to a person who is
compelled or requested to attend a Board of Inquiry.
This clause provides for the equivalent entitlement in relation
to a Board of Inquiry to that provided for under clause 42 in
relation to a Royal Commission.
Division 11--Confidentiality, sharing and use of information
Division 11 creates certain criminal offences relating to the confidentiality of
Board of Inquiry information and materials. It has the same purposes as the
Division 12 of Part 2 in relation to Royal Commissions.
Clause 83 creates an offence for a current or former Board of Inquiry
officer to knowingly disclose information that the officer
acquired as a result of the officer's role, or in the performance of
the officer's functions, in relation to the Board of Inquiry,
subject to specified exceptions. This clause creates an
equivalent offence to that created under clause 43 in relation to
Royal Commission officers.
Clause 84 provides for the circumstances in which a member of a Board of
Inquiry (or an authorised person) may, despite clause 83,
disclose information, documents and things to another person or
body. This clause has the equivalent effect to clause 44 in
relation to Royal Commissions.
Clause 85 creates an offence for a person to take advantage in certain
circumstances of information provided to them by a Board of
Inquiry. This clause creates an equivalent offence to that
created under clause 45 in relation to Royal Commissions.
Division 12--Offences
Division 12 creates certain criminal offences relating to Boards of Inquiry.
It has the same purposes as Division 13 of Part 2 has in relation to Royal
Commissions.
45
Clause 86 creates an offence for failing to comply with a notice to produce
or a notice to attend under clause 64 (whether in whole or in
part), without reasonable excuse. This clause creates an
equivalent offence to that created under clause 46 in relation to
Royal Commissions.
Clause 87 creates an offence for failing to take an oath or make an
affirmation or answer a question when required to do so by a
Board of Inquiry, without reasonable excuse. This clause
creates an equivalent offence to that created under clause 47 in
relation to Royal Commissions.
Clause 88 creates an offence for a person to contravene--
· an order restricting access to Board of Inquiry
proceedings made under clause 71; or
· an order restricting or prohibiting the publication of
information made under clause 73.
This clause creates an equivalent offence to that created under
clause 48 in relation to Royal Commissions.
Clause 89 creates an offence for a person to engage in conduct that
hinders, obstructs or causes serious disruption to a Board of
Inquiry proceeding. This clause creates an equivalent offence
to that created under clause 49 in relation to Royal
Commissions.
Clause 90 creates offences for knowingly giving false or misleading
evidence to a Board of Inquiry. This clause creates equivalent
offences to those created under clause 50 in relation to Royal
Commissions.
Clause 91 creates an offence for an employer to dismiss or take other
detrimental action against an employee (or to threaten to do so)
in certain circumstances. This clause creates an equivalent
offence to that created under clause 51 in relation to Royal
Commissions.
Clause 92 creates an offence for a person to take detrimental action against
a person who is or was a member of a Board of Inquiry, because
that person is or was a member. This clause creates an
equivalent offence to that created under clause 52 in relation to
Royal Commissions.
46
PART 4--FORMAL REVIEWS
Part 4 of the Bill provides for the establishment and conduct of Formal
Reviews, including--
· the powers of Formal Reviews;
· procedures and protections in relation to Formal Reviews;
· offences in relation to Formal Reviews.
Division 1--Establishment of Formal Reviews
Clause 93 provides for the way in which a Formal Review is established.
The Bill provides that a Formal Review can be established by
the Premier, or another Minister with the consent of the
Premier, appointing one or more natural persons to constitute a
Formal Review to inquire into and report on specified terms of
reference.
Unlike for Royal Commissions and Boards of Inquiry, there is
no requirement for the instrument appointing persons as a
Formal Review (the establishing instrument) to be published in
the Government Gazette. Nonetheless, it may voluntarily be so
published and, if so, section 153 of the Evidence Act 2008
provides certain evidential presumptions that will apply once
the establishing instrument is published in the Government
Gazette.
Subclause (3)(a) provides that certain matters must be specified
in the establishing instrument. For example, the establishing
instrument must specify the terms of reference of the Formal
Review. Unlike Royal Commissions and Boards of Inquiry
which have coercive powers, a Formal Review does not.
Accordingly, clause 123 does not restrict the scope and powers
of a Formal Review in relation to certain independent entities.
Subclause (3)(b) provides that additional matters may be
specified in the establishing instrument. For example, the
establishing instrument may specify whether the Formal Review
can incur expenses and, if so, the maximum amount that can be
incurred. Subclause (3)(b)(vi) provides additional flexibility by
confirming that the Premier or other Minister may specify any
other matters which seems appropriate. Such matters may
include--
47
· whether any public hearings or any nature should be
held by the Formal Review and, if so, the location(s) at
which those hearings may or must be held;
· the relationship between the Formal Review and other
relevant inquiries;
· previous inquiries, investigation or reports to which the
Formal Review must have regard.
Clause 94 provides that a Formal Review may be converted into a Board
of Inquiry and that the post-conversion inquiry continues to
have the benefit of everything done by the pre-conversion
inquiry. This provision enables the Government to convert a
Formal Review into a Board of Inquiry if it becomes apparent
that the additional powers conferred on a Board of Inquiry are
necessary to properly investigate the specified terms of
reference.
Clause 95 provides that a Formal Review may be converted into a Royal
Commission and that the post-conversion inquiry continues to
have the benefit of everything done by the pre-conversion
inquiry. This provision enables the Government to convert a
Formal Review into a Royal Commission if it becomes apparent
that the additional powers conferred on a Royal Commission are
necessary to properly investigate the specified terms of
reference.
Division 2--Arrangements to facilitate Formal Reviews
Clause 96 provides for the employment and engagement of staff and
services to support a Formal Review. Except in relation to
counsel assisting, this clause has the equivalent effect to
clauses 9 and 56 in relation to Royal Commissions and Boards
of Inquiry, respectively.
Counsel assisting
Unlike Royal Commissions, and even more so than Boards of
Inquiry, it is not expected that Formal Reviews would require or
desire a role of counsel assisting the Formal Review.
Accordingly, the Bill does not expressly provide for a Formal
Review to engage a person as counsel assisting. Nonetheless, to
the extent necessary, such a person could be engaged under
48
clause 96 to provided consultant or legal services to the Formal
Review.
Clause 97 provides that the public sector values in sections 7(1)(a)(i)
and (c)(iii) of the Public Administration Act 2004 do not
apply to a member of staff in respect of their employment or
engagement with a Formal Review. This clause has the
equivalent effect to clauses 10 and 57 in relation to Royal
Commissions and Boards of Inquiry, respectively.
Clause 98 provides that a Formal Review may incur expenses and meet
financial obligations only if authorised by the establishing
instrument and, if so, only to the extent of the maximum
amount that is specified in the establishing instrument.
Unlike Royal Commissions and Boards of Inquiry for which
moneys are appropriated directly from the Consolidated Fund,
the source of the funding (if any) for a Formal Review is a
matter for Government.
This clause is otherwise equivalent to clauses 11 and 58 in
relation to Royal Commissions and Boards of Inquiry,
respectively.
Division 3--Conduct of Formal Review inquiries
Division 3 makes certain provisions for the conduct of Formal Review
inquiries. Unlike a Royal Commission or a Board of Inquiry, a Formal
Review does not have any coercive powers.
Privileges and immunities
Unlike for a Royal Commission, the Bill does not abrogate legal professional
privilege or the privilege against self-incrimination in respect of Formal
Reviews. Further, unlike for a Royal Commission or a Board of Inquiry,
statutory secrecy provisions will continue to apply in respect of a Formal
Review's inquiry.
Privileges and immunities applying at common law will apply in relation to
Formal Reviews. For example, the privilege against self-incrimination,
public interest immunity and parliamentary privilege apply.
The statutory privileges in the Evidence Act 2008 do not apply to Formal
Reviews.
49
Clause 99 confirms the autonomy of the Formal Review in relation to the
manner in which it conducts its inquiry, subject to--
· the requirements of procedural fairness;
· the establishing instrument;
· the Bill, regulations made under the Bill, and any other
Act.
This clause has the equivalent effect to clauses 12 and 59 in
relation to Royal Commissions and Boards of Inquiry,
respectively.
Unlike for Royal Commissions and Boards of Inquiry, the Bill
does not empower Formal Reviews to exercise concurrent
functions under equivalent laws of another jurisdiction. In view
of this clause, a Formal Review would only be able to exercise
concurrent functions if its establishing instrument permitted it to
do so.
Clause 100 confirms that the chairperson of a Formal Review may
determine, subject to the Bill and the establishing instrument,
that particular functions of the Formal Review may be
performed by one or more members separately. This clause has
the equivalent effect to clauses 13 and 60 in relation to Royal
Commissions and Boards of Inquiry, respectively.
Clause 101 provides that a Formal Review is not bound by the rules of
evidence or any practices or procedures that apply to courts of
record. This clause has the equivalent effect to clauses 14
and 61 in relation to Royal Commissions and Boards of Inquiry,
respectively.
Clause 102 confirms that a Formal Review can determine whether, and the
extent to which, a person may appear or be legally represented
in an inquiry. This clause gives Formal Reviews the same
power that Royal Commissions and Boards of Inquiry have
under clauses 15 and 62, respectively.
Clause 103 provides that a Formal Review may issue practice directions,
statements or notes in relation to its inquiry. This clause gives
Formal Reviews the same power that Royal Commissions and
Boards of Inquiry have under clauses 16 and 63, respectively.
50
Division 4--Control of proceedings and publication of
information and evidence
Division 4 enables a Formal Review to control access to its proceedings
and the publication of information it receives in the course of its inquiry.
This Division gives Formal Reviews the same powers as Royal Commissions
under Division 5 of Part 2 and Boards of Inquiry under Division 5 of Part 3.
The powers in this Division will facilitate the conduct of proceedings by
Formal Reviews. However, unlike for a Royal Commission and even less so
than for Boards of Inquiry, the public are unlikely to expect a Formal Review
to hold public hearings and, if a Formal Review does, the public will not
expect the hearings be held with the same level of formality. In any event, it
is a matter for the Formal Review to determine what proceedings (if any) it
wishes to conduct for the purposes of its inquiry.
Clause 104 enables a Formal Review to restrict access to its proceedings.
This clause gives Formal Reviews the same powers that Royal
Commissions have under clause 24 and Boards of Inquiry have
under clause 71.
Clause 105 enables a Formal Review to expel a person who disrupts its
proceedings. This clause gives Formal Reviews the same
power that Royal Commissions have under clause 25 and
Boards of Inquiry have under clause 72.
Clause 106 enables a Formal Review to control the publication of
information relating to its inquiry. This clause gives Formal
Reviews the same powers that Royal Commissions have under
clause 26 and Boards of Inquiry have under clause 73.
Division 5--Reports of Formal Reviews
Clause 107 requires a Formal Review to deliver a report of its inquiry to
the Premier and (if applicable) the Minister who established
the Formal Review, and sets out procedural requirements for
those reports (including matters in relation to their content).
This clause imposes equivalent requirements to those imposed
on Royal Commissions and Boards of Inquiry under clauses 35
and 75, respectively.
51
Clause 108 imposes particular procedural fairness requirements on a Formal
Review that intends to make an adverse finding against a
person. This clause imposes the same requirements that are
imposed on Royal Commissions under clause 36 and on Boards
of Inquiry under clause 76.
Clause 109 facilitates (but does not require) the Parliamentary tabling of
Formal Review reports.
Unlike for Royal Commissions or Boards of Inquiry, the
clause does not facilitate only part of a report being tabled.
Accordingly, if publication of a report would prejudice legal
proceedings, the relevant Minister could withhold release of the
report until those legal proceedings have completed.
The clause otherwise imposes equivalent tabling and
publication requirements and processes for Formal Reviews
to those applying in relation to Royal Commissions under
clause 37 and Boards of Inquiry under clause 77.
Division 6--Protection from legal liability
Clause 110 provides that a current or former member of a Formal Review
cannot be compelled to give evidence in relation to the Formal
Review in any criminal, civil, administrative or disciplinary
proceedings. This clause provides the same protections for
Formal Review members as are provided for commissioners
under clause 38 and for Board of Inquiry members under
clause 78.
Clause 111 provides protection to those who conduct, assist or participate in
a Formal Review. This clause provides the same protections as
are provided in relation to Royal Commissions under clause 39
and Boards of Inquiry under clause 79.
Division 7--Formal Reviews and courts
Clause 112 limits the circumstances in which evidence provided by a
person to a Formal Review can be used against the person in
other proceedings. This clause imposes similar limitations that
are imposed under clause 40 in relation to evidence provided to
a Royal Commission and under clause 80 in relation to evidence
provided to a Board of Inquiry.
52
Clause 113 provides that the chairperson of a Formal Review, on the
chairperson's own motion or in response to a request, may refer
a question of law arising in an inquiry to the Supreme Court.
This clause gives the chairperson of a Formal Review the same
power that the chairperson of a Royal Commission has under
clause 41 and that the chairperson of a Board of Inquiry has
under clause 81.
Division 8--Assistance for witnesses
Clause 114 provides an entitlement for expenses and allowances to be paid,
in accordance with a prescribed scale, to a person who is
specifically requested to attend a Formal Review. This clause
provides the equivalent entitlement to that provided under
clauses 42 and 82 in relation to Royal Commissions and Boards
of Inquiry, respectively.
Division 9--Confidentiality, sharing and use of information
Division 9 creates certain criminal offences relating to the confidentiality of
Formal Review information and materials. It has the same purposes as
Division 12 of Part 2 in relation to Royal Commissions and Division 11 of
Part 3 in relation to Boards of Inquiry.
Clause 115 creates an offence for a current or former Formal Review
officer to knowingly disclose information that the officer
acquired as a result of the officer's role, or in the performance of
the officer's functions, in relation to the Formal Review, subject
to specified exceptions. This clause creates an equivalent
offence to that created under clause 43 in relation to Royal
Commissions and under clause 83 in relation to Boards of
Inquiry.
Clause 116 provides for the circumstances in which a member of a Formal
Review (or an authorised person) may, despite clause 115,
disclose information, documents and other things to another
person or body. This clause has the equivalent effect to
clause 44 in relation to Royal Commissions and clause 84 in
relation to Boards of Inquiry.
Clause 117 creates an offence for a person to take advantage in certain
circumstances of information provided to them by a Formal
Review. This clause creates an equivalent offence to that
53
created under clause 45 in relation to Royal Commissions and
under clause 85 in relation to Boards of Inquiry.
Division 10--Offences
Division 10 creates certain criminal offences relating to Formal Reviews.
It has the same purposes as Division 13 of Part 2 has in relation to Royal
Commissions and Division 12 of Part 3 has in relation to Boards of Inquiry.
However, as Formal Reviews (unlike Royal Commissions and Boards of
Inquiry) do not have the power to take evidence on oath or affirmation, the
perjury offence under section 314 of the Crimes Act 1958 will not apply to
Formal Review proceedings.
Clause 118 creates an offence for a person to contravene an exclusion or
restriction order. This clause creates an equivalent offence to
that created under clause 48 in relation to Royal Commissions
and under clause 88 in relation to Boards of Inquiry.
Clause 119 creates an offence for a person to engage in conduct that
hinders, obstructs or causes serious disruption to Formal
Review proceedings. This clause creates an equivalent offence
to that created under clause 49 in relation to Royal
Commissions and under clause 89 in relation to Boards of
Inquiry.
Clause 120 creates offences for knowingly giving false or misleading
evidence to a Formal Review. This clause creates equivalent
offences to those created under clause 50 in relation to Royal
Commissions and under clause 90 in relation to Boards of
Inquiry.
Clause 121 creates an offence for an employer to dismiss or take other
detrimental action against an employee (or to threaten to do so)
because that employee has given information to a Formal
Review. This clause creates an equivalent offence to that
created under clause 51 in relation to Royal Commissions and
under clause 91 in relation to Boards of Inquiry.
Clause 122 creates an offence for a person to take detrimental action against
a person because that person is or was a member of a Formal
Review. This clause creates an equivalent offence to that
created under clause 52 in relation to Royal Commissions and
under clause 92 in relation to Boards of Inquiry.
54
PART 5--GENERAL
Division 1--General provisions for inquiries
Clause 123 provides that a Royal Commission or Board of Inquiry cannot
inquire into or exercise coercive powers in relation to the
persons and bodies listed in subclause (1). However--
· nothing in the Bill precludes a Formal Review inquiring
into, and receiving evidence voluntarily from, these
persons and bodies (as Formal Reviews do not have the
power to compel evidence); and
· as confirmed by subclause (3), these persons and bodies
may give evidence voluntarily to a Royal Commission
or Board of Inquiry.
These persons and bodies are independent of the executive
Government in relation to the performance of some or all of
their functions. For example, the clause prevents an inquiry
into the Victorian judiciary or independent officers of the
Parliament. Given this independence, it would not be
appropriate for a coercive inquiry established by the executive
Government to inquire into or compel evidence from these
persons or bodies.
These independent officers and bodies are subject to other,
more appropriate accountability mechanisms. For example,
the Commissioner of the Independent Broad-based Anti-
corruption Commission, the Ombudsman and the Auditor-
General (who are independent officers of the Parliament) are
overseen by the Victorian Inspectorate and the Parliament.
This clause will prevent a Royal Commission or Board of
Inquiry inquiring into or exercising coercive powers in
relation to persons who hold specified statutory offices.
However, subject to any limit imposed by another relevant
statutory provision, it will not prevent an inquiry considering
action that was taken by such a person otherwise than in respect
of their statutory office (e.g. action taken in a person's private
capacity or prior to their appointment to the relevant office).
Subclause (2) confirms that the Bill is not intended to alter of
vary sections 94B, 94E and 94F of the Constitution Act 1975,
which entrench and provide for the independence of the
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Auditor-General, the Ombudsman and the Electoral
Commissioner.
Clause 124 provides for the transfer of records of a Royal Commission,
Board of Inquiry or Formal Review after it ceases to exist.
Subclause (1) requires records of an inquiry to be transferred to
the Department of Premier of Cabinet unless the Premier, by
instrument, determines that they are to be transferred to another
public office within the meaning of the Public Records Act
1973. This will provide flexibility to allow inquiry records to
be transferred to the most appropriate public office.
Subclause (2) provides that the public office to which the
inquiry records are transferred must, in turn, cause those
records to be transferred to PROV as soon as practicable.
This requirement applies despite section 8A of the Public
Records Act 1973, which sets out general requirements for the
process and timing for transfers of public records to PROV.
Subclause (3) provides that, once transferred, records are to be
held and dealt with on the same basis, and in the same manner,
as they were and could be dealt with by the relevant inquiry.
Subclause (4) provides that this clause is subject to any
arrangement made under section 2B(b) of the Public Records
Act 1973. Section 2B(b) of that Act allows the Keeper of
Public Records to enter into arrangements for the management
of records with a body that ceases to be a public office under
that Act (and is thus no longer subject to that Act).
Clause 125 exempts Royal Commission, Board of Inquiry and Formal
Review documents from the Freedom of Information Act
1982.
The clause provides that the Freedom of Information Act does
not apply to--
· a document in the possession of an inquiry; or
· a document of an inquiry that is in the possession of an
agency (within the meaning of the Act) while the
inquiry is in existence. For example, this would apply
to draft reports provided to an agency by an inquiry to
allow the agency to respond to proposed adverse
findings, as required by the Bill.
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These documents will be subject to the freedom of information
regime upon the conclusion of the inquiry. However, as
provided for by clause 125, these documents may also be
publicly accessible from PROV soon after the inquiry's
conclusion. As such, it may not be necessary to seek such
documents under freedom of information.
Clause 126 provides for the continuity of inquiries in the event of any
variation to the letters patent, establishing Order or establishing
instrument. In particular, this includes any change to the
membership or constitution of the inquiry. This ensures that
inquiries can continue uninterrupted despite such changes.
Division 2--Ancillary provisions for offences
Clause 127 defines body corporate and officer for the purposes of this
Division.
Clause 128 provides for the circumstances in which an officer will also be
liable for an offence committed by that body corporate.
Subclause (1) provides that, if a body corporate commits an
offence specified in Schedule 1, an officer of the body corporate
will also commit that offence where he or she--
· authorised or permitted the commission of the offence
by the body corporate; or
· was knowingly concerned in any way in the commission
of the offence by the body corporate.
Subclause (2) provides that an officer may rely on any defence
that would be available to the body corporate if it were charged
with the relevant offence. The officer will also bear the same
burden of proof that the body corporate would bear.
Subclause (3) confirms that an officer may commit an offence
by virtue of subclause (1) even if the body corporate itself has
not been prosecuted for, or found guilty of, that offence.
Subclause (4) provides that the clause does not affect the
operation of--
· sections 323 or 324 of the Crimes Act 1958, which
allow for a person who aids, abets, counsels or procures
the commission of an indictable or summary offence to
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be tried or indicted and punished as a principal offender;
or
· section 52 of the Magistrates' Court Act 1989, which
allows for a person who aids, abets, counsels or
procures the commission of a summary offence to be
punished as a principal offender.
This clause is consistent with the accessorial liability provisions
introduced in the Statute Law Amendment (Directors'
Liability) Act 2013.
Clause 129 applies where a body corporate is charged with an offence
against the Bill or regulations made under the Bill. It provides
that, if it is necessary in any such proceedings to establish the
state of mind of the body corporate, it is sufficient to show that
a servant or agent of the body corporate had the relevant
intention.
Subclause (2) provides that a statement made by an officer of a
body corporate is admissible as evidence against the body
corporate in such proceedings. This applies subject to
clauses 40, 80 and 112, which limit the circumstances in which
evidence given to an inquiry can be used against the person who
provided it in subsequent proceedings.
Clause 130 provides that, if a body corporate is found guilty of an offence
against the Bill or regulations made under the Bill, the court
may impose on the body corporate a fine up to 5 times greater
than the maximum amount that could be imposed on a natural
person.
Subclause (2) provides that this clause has effect despite--
· anything to the contrary in the Sentencing Act 1991;
and
· the fact that the offences in the Bill specify a single
maximum fine applicable to all offenders.
Clause 131 applies where proceedings are brought against the Crown for an
offence against the Bill or regulations made under the Bill.
Subclause (2) sets out which Crown agency is the responsible
agency for the purposes of such proceedings.
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Subclause (3) provides that, subject to relevant rules of the
court, any rights or obligations of the Crown in relation to the
proceedings are conferred or imposed on the responsible
agency.
Subclause (4) provides that, during the proceedings, the person
prosecuting the offence may change which agency is the
responsible agency, with leave of the court.
Clause 132 applies if a public body (within the meaning of the
Independent Broad-based Anti-corruption Commission Act
2011) is dissolved where proceedings have been, or could have
been, commenced against it. The clause provides that such
proceedings may be continued or commenced against the public
body's successor body.
Division 3--Regulations
Clause 133 is a regulation-making power. It allows the Governor in
Council to make regulations for or with respect to any matter
or thing required or permitted by the Bill to be prescribed or
necessary to be prescribed to give effect to the Bill.
Subclause (2) amplifies the scope of the regulation-making
power.
PART 6--RELATED AND CONSEQUENTIAL AMENDMENTS
Division 1--Independent Broad-based Anti-corruption
Commission
Clause 134 amends section 41 of the Independent Broad-based Anti-
corruption Commission Act 2011 (IBAC Act).
Section 41(1) allows the Independent Broad-based Anti-
corruption Commission (IBAC) to share relevant information to
specified persons and bodies, where appropriate to do so.
The clause amends section 41(1) to allow the IBAC to share
information with additional persons and bodies, including Royal
Commissions, Boards of Inquiry, Formal Reviews and
equivalent bodies establishing in other Australian jurisdictions.
The clause also inserts appropriate definitions and makes
consequential amendments to the section required by this
change.
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Clause 135 repeals section 144(3) of the IBAC Act. Section 144(3)
provides that section 30 of the Evidence (Miscellaneous
Provisions) Act 1958 (EMPA) does not apply in respect of a
statement made in response to a question in accordance with a
witness summons under the IBAC Act. As item 16.3 of
Schedule 2 repeals section 30 of the EMPA, section 144(3) is
now unnecessary.
Division 2--Parliamentary Committees Act 2003
Clause 136 inserts a new section 37A into the Parliamentary Committees
Act 2003.
Section 37 of that Act provides that submissions and reports of
a Joint Investigatory Committee must generally be made
available to the public, except where the document contains
evidence provided to the Commission on the basis that it remain
private.
Section 28(3) of that Act allows a Committee to take evidence
in private.
New section 37A provides for the application of section 37 to
evidence given in private under section 28(3). It provides that,
where evidence given in private is received on the basis that it
will be made public, the requirement in section 37 to make that
evidence publicly available applies. However, for evidence
given in private on the basis that it will remain private, the
obligation under section 37(2) to ensure that that evidence
remains private continues to apply.
Clause 137 amends section 50(b) of the Parliamentary Committees Act
2003 to ensure that the immunity in respect of Joint
Investigatory Committees provided for in that section is more
consistent with the common law of parliamentary privilege.
Section 50(b) currently provides that the proceedings,
recommendations, reports of or any documents published by a
Joint Investigatory Committee must not be the subject of, or in
any way questioned in, any proceedings before a court.
This amendment will extend this protection, by providing that
such documents of a Joint Investigatory Committee also cannot
be the subject of, or questioned in, a proceeding before a
tribunal, Royal Commission, Board of Inquiry or Formal
Review.
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Division 3--Public Administration Act 2004
Division 3 amends the Public Administration Act 2004 to--
· accommodate the new inquiry models provided for in the Bill
and provide for and promote the independence of these
inquiries; and
· reflect the repeal (by item 16.2 of Schedule 2 of the Bill) of the
investigatory powers under the EMPA which the Victorian
Public Sector Commission currently relies on. Consistent with
the repeal of the EMPA provisions, these amendments
transition to appropriately tailored stand-alone inquiry powers
for the Victorian Public Sector Commission (which are
modelled on the relevant equivalent provisions in relation to
inquiries established under the Bill).
Clause 138 inserts definitions relating to inquiries established under the Bill
into the Public Administration Act 2004.
The amendments to the definition of public official confirms
the independence of inquiries established under the Bill.
The effect of those amendments is to confirm that
commissioners and members of Boards of Inquiry and
Formal Reviews are not public officials for the purposes of the
Public Administration Act 2004. It follows that the public
sector values do not apply to commissioners and members.
This amendment confirms the independence of inquiries
established under the Bill from Government, as it ensures that
commissioners and members are not under obligations to
advise Government and implement its policies and programs
(see section 7(1)(c)(iii) of the Public Administration Act
2004).
Clause 139 amends section 5 of the Public Administration Act 2004 to
provide that inquiries established under the Bill are not public
entities for the purposes of the Public Administration Act
2004.
This amendment confirms the independence of inquiries
established under the Bill from Government. For example,
inquires would not need to comply with--
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· section 13A of the Public Administration Act 2004,
which requires public entities to provide information to
a Department Head in order to enable the Department
Head to advise the relevant Minister(s) in relation to the
public entity; or
· section 92 the Public Administration Act 2004, which
requires public entities to comply with whole-of-
government policies.
Clause 140 amends section 49 of the Public Administration Act 2004 to
permit the Victorian Public Sector Commissioner to delegate
certain inquiry powers to an executive employed by the
Commissioner.
Clause 141 amends section 56 of the Public Administration Act 2004 to
confirm that a body that is subject to a Victorian Public Sector
Commission inquiry must comply with section 42 of the Public
Administration Act 2004 in relation to the inquiry, even if the
body is not otherwise subject to the Public Administration Act
2004.
Section 42 of the Public Administration Act 2004 obliges
public sector bodies to cooperate with the Commission and
provide any documents or information required by the
Commission in connection with the performance of its
functions.
Clause 142 substitutes new sections 57 and 58 of the Public
Administration Act 2004 which update procedural provisions
relating to an inquiry conducted by the Victorian Public Sector
Commission, which are modelled on the equivalent provisions
for inquiries established under the Bill.
New section 57 provides that the Victorian Public Sector
Commission may conduct an inquiry in any manner that it sees
fit, subject to the requirements of procedural fairness, the
Premier's direction for the inquiry and the Public
Administration Act 2004 or any other Act.
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New section 58 provides that--
· the Commission is not bound by the rules of evidence
and can inform itself in any manner that it sees fit;
· the Commission can require a person to attend an
inquiry and to give evidence or answer questions on
oath or affirmation;
· if the Commission agrees, a person attending an inquiry
can be accompanied or represented by an Australian
legal practitioner or other person.
Clause 143 inserts a new section 60A into the Public Administration Act
2004 which is consistent with and promotes the independence
of the inquires established under the Bill. The new section will
prevent the Victorian Public Sector Commission from inquiring
into a Royal Commission, Board of Inquiry or Formal Review.
Clause 144 inserts a new Division 4A into Part 4 of the Public
Administration Act 2004 to provide for new stand-alone
information-gathering powers, and associated offences, for
Victorian Public Sector Commission inquiries.
New section 60C provides the Victorian Public Sector
Commission with power to issue a notice to require the
attendance of a witness or the production of documents or other
things.
New section 60D--
· outlines the procedure by which a notice to attend or a
notice to produce must be served on a person; and
· provides for the circumstances in which a notice to
attend requiring immediate attendance may be served.
New section 60E creates an offence for failing to comply with
a notice under new section 60C duly served by the Victorian
Public Sector Commission. The maximum penalty is
240 penalty units or imprisonment for 2 years for this offence.
New section 60F creates an offence for failing to take an oath
or make an affirmation or answer a question when required to
do so by the Victorian Public Sector Commission. The offence
only applies to persons who have been warned that failure to
take the oath or answer the question may be an offence.
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The maximum penalty is 240 penalty units or imprisonment for
2 years for this offence.
New section 60G gives the Victorian Public Sector Commission
the power to compel a person to give information to the
Victorian Public Sector Commission, despite the fact that
another Act prohibits the disclosure of that information or
provides that such information is confidential. However, new
section 60G(2)(b) provides protection for that person by
providing that the person will not be subject to any liability for
complying. New section 60G(3) provides that no
confidentiality obligations apply to the Victorian Public Sector
Commission if it receives information or documents as
contemplated by new section 60G.
New section 60H provides protection to those who participate
in Victorian Public Sector Commission inquiries.
These protections mirror the protections that are provided
to participants in proceedings in the Supreme Court.
New section 60H(1) and (2) confer the same protections and
immunities on an inquiry conducted by the Victorian Public
Sector Commission and persons authorised by the Victorian
Public Sector Commission that a judge of the Supreme Court
has. New section 60H(3) provides that a legal representative of
a person in a Victorian Public Sector Commission inquiry has
the same protection and immunity as they would if representing
a party in the Supreme Court. Finally, new section 60H(4)
provides that a person who gives information or evidence to a
Victorian Public Sector Commission inquiry has the same
protection and immunity as they would if they were a witness in
the Supreme Court.
New section 60I provides that the Victorian Public Sector
Commission may issue practice directions, statements or notes
in relation to its inquiries.
Clause 145 provides that Commission inquiries established under
Division 4 of Part 4 of the Public Administration Act 2004
that had begun before clause 142 of the Bill commences,
continue to operate on the basis of the relevant provisions of the
Public Administration Act 2004 as it was before these
amendments. The amendments made by this Division in
respect of Commission inquiries will only apply to an inquiry
that begins on or after the commencement of clause 142.
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Division 4--Consequential repeals and amendments
Clause 146 repeals the following Acts, which relate to specific completed
inquiries and are now spent and redundant--
· Bushfires Royal Commission (Report) Act 2009,
which provided for the tabling and publication of
reports of the Victorian Bushfires Royal Commission;
· Evidence (Commissions) Act 1982, which related to
the provision of information to various previous
commissions of inquiry;
· Longford Royal Commission (Report) Act 1999,
which provided for the tabling and publication of the
report of the Longford Royal Commission.
As provided for by sections 14 and 15(1) of the Interpretation
of Legislation Act 1984, the repeal of these Acts does not
affect their previous operation, the privilege acquired or accrued
under them or the continued application of amendments made
by them.
Clause 147 provides for the making of the consequential amendments to
various Acts set out in Schedule 2.
Clause 148 repeals the definition of Australian legal practitioner in
clause 3 of the Bill on the commencement of section 158 of the
Legal Profession Uniform Law Application Act 2014.
Section 158 of that Act will insert a new definition of
Australian legal practitioner into the Interpretation of
Legislation Act 1984, which will apply for the purposes of the
Bill.
Division 5--Repeal of Part and Schedule 2
Clause 149 provides for the automatic repeal of Part 6 and Schedule 2 of
the Bill on the first anniversary of the first day on which all of
their provisions are in operation. As provided for by
section 15(1) of the Interpretation of Legislation Act 1984,
this repeal does not affect the continuing operation of the
amendments made by these provisions.
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SCHEDULES
Schedule 1 lists the offences under the Bill which may also be committed
by an officer of a body corporate (see clause 128).
Schedule 2 sets out consequential amendments to other Acts required as a
result of this Bill.
In summary, Schedule 2 includes amendments to--
· repeal Part IVA of the Constitution Act 1975 and
Division 5 of Part I of the EMPA, which currently
provide for the establishment of Royal Commissions
and Boards of Inquiry and set out the powers of those
inquiries;
· include a transitional provision which preserves the
operation of the current powers of Royal Commissions
and Boards of Inquiry in Division 5 of Part I of the
EMPA--this ensures these powers will continue to
apply to--
· a Royal Commission or Board of Inquiry that has
not yet completed its inquiry, and
· any entity, established under an Act enacted prior
to the commencement of this Bill, which rely on
those provisions;
· repeal section 30 of the EMPA and make a
consequential amendment to the Victorian
Inspectorate Act 2011;
· update definitions of, and references to, Royal
Commissions and Boards of Inquiry in other
Acts to include the appropriate definitions in and
references to provisions of the Bill;
· where necessary and appropriate, update Acts to
extend provisions which currently apply to Royal
Commissions and Boards of Inquiry so that they
also apply to Formal Reviews established under
the Bill;
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· confirm that a Royal Commission, Board of
Inquiry or Formal Review established under the
Bill is not subject to the requirements of
(including privacy principles under) the Health
Records Act 2001, Information Privacy Act
2000 (which is proposed to be repealed by the
Privacy and Data Protection Bill 2014) and, if
enacted, the Privacy and Data Protection Bill
2014.
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