FILE/14-67a003.docx · Web viewestablishing the Royal Commission as the commissioner who is to chair the Royal Commission; (b)of a Board of Inquiry, means— (i)if there is only

Version No. 003

Inquiries Act 2014No. 67 of 2014

Version incorporating amendments as at1 July 2015

TABLE OF PROVISIONSSection Page

Part 1—Preliminary 1

1 Purpose and overview 12 Commencement 23 Definitions 24 Act binds the Crown 7

Part 2—Royal Commissions 8

Division 1—Establishment of Royal Commissions 8

5 Establishment of Royal Commission by letters patent 86 Publication of letters patent 97 Concurrent Royal Commissions 98 Relationship with the Royal prerogative 9

Division 2—Arrangements to facilitate Royal Commissions 10

9 Staffing and services 1010 Certain public sector values do not apply to Royal

Commission staff 1111 Expenses and financial obligations of Royal Commission 11

Division 3—Conduct of inquiries by Royal Commissions 12

12 Manner of inquiry of Royal Commission 1213 Commissioners may act separately 1214 Evidence 1315 Participation in Royal Commission inquiries 1316 Practice directions, statements and notes 13

Division 4—Powers of Royal Commissions for production of documents and other things and obtaining evidence 14

17 Power to compel production of documents and other things or attendance of witness 14

18 Variation or revocation of notice to produce or notice to attend 15

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19 Service of notice to produce or notice to attend 1720 Witness already in custody 1821 Power to take evidence on oath or affirmation 1822 Powers in relation to documents and other things 1823 Failure to comply with notice or requirement 18

Division 5—Control of proceedings and publication of information and evidence 18

24 Access to Royal Commission proceedings 1825 Power to expel persons who disrupt proceedings 1826 Restriction on publication of information relating to Royal

Commission inquiries 18

Division 6—Entry, search and seizure powers of Royal Commissions 18

27 Authorised officers 1828 Search warrant 1829 Procedure for executing search warrant 1830 Copies or receipts to be given for documents or other things 1831 Return of documents and other things 18

Division 7—Application of privileges and statutory secrecy to Royal Commissions 18

32 Legal professional privilege does not apply 1833 Privilege against self-incrimination does not apply 1834 Statutory secrecy and confidentiality provisions 18

Division 8—Reports of Royal Commissions 18

35 Report of Royal Commission 1836 Adverse findings 1837 Tabling of Royal Commission report 18

Division 9—Protection from legal liability 18

38 Compellability of commissioners 1839 Protection of participants 18

Division 10—Royal Commissions and courts 18

40 Admissibility of answers, information, documents and other things 18

41 Referral of questions of law to Supreme Court 18

Division 11—Assistance for witnesses 18

42 Costs of attending Royal Commission 18

Division 12—Confidentiality, sharing and use of information 18

43 Confidentiality for Royal Commission officers 18

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44 Disclosure or provision of information by commissioners or authorised persons 18

45 Taking advantage of information 18

Division 13—Offences 18

46 Offence to fail to comply with a notice to produce or attend 1847 Offence to fail to take oath, make affirmation or answer

question 1848 Offence to contravene exclusion or restriction orders 1849 Offence to hinder, obstruct or cause serious disruption to

proceeding 1850 Offence to make false or misleading statements or produce

false or misleading documents or other things 1851 Offence for employers to take detrimental action against

employees 1852 Offence of taking detrimental action against commissioners 18

Part 3—Boards of Inquiry 18

Division 1—Establishment of Boards of Inquiry 18

53 Establishment of Board of Inquiry by Order in Council 1854 Concurrent Boards of Inquiry 1855 Conversion of Board of Inquiry into a Royal Commission 18

Division 2—Arrangements to facilitate Boards of Inquiry 18

56 Staffing and services 1857 Certain public sector values do not apply to Board of Inquiry

staff 1858 Expenses and financial obligations of Board of Inquiry 18

Division 3—Conduct of inquiries by Boards of Inquiry 18

59 Manner of inquiry of Board of Inquiry 1860 Members may act separately 1861 Evidence 1862 Participation in Board of Inquiry inquiries 1863 Practice directions, statements and notes 18

Division 4—Powers of Boards of Inquiry for production of documents and other things and obtaining evidence 18

64 Power to compel production of documents and other things or attendance of witness 18

65 Variation or revocation of notice to produce or notice to attend 1866 Service of notice to produce or notice to attend 1867 Witness already in custody 1868 Power to take evidence on oath or affirmation 1869 Powers in relation to documents and other things 1870 Failure to comply with notice or requirement 18

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71 Access to Board of Inquiry proceedings 1872 Power to expel persons who disrupt proceedings 1873 Restriction on publication of information relating to Board of

Inquiry inquiries 18

Division 6—Application of statutory secrecy to Boards of Inquiry 18

74 Statutory secrecy and confidentiality provisions 18

Division 7—Reports of Boards of Inquiry 18

75 Report of Board of Inquiry 1876 Adverse findings 1877 Tabling of Board of Inquiry report 18


78 Compellability of members 1879 Protection of participants 18

Division 9—Boards of Inquiry and courts 18




82 Costs of attending Board of Inquiry 18


83 Confidentiality for Board of Inquiry officers 1884 Disclosure or provision of information by members or

authorised persons 1885 Taking advantage of information 18


86 Offence to fail to comply with a notice to produce or attend 1887 Offence to fail to take oath, make affirmation or answer

question 1888 Offence to contravene exclusion or restriction orders 1889 Offence to hinder, obstruct or cause serious disruption to



employees 1892 Offence of taking detrimental action against members 18

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Part 4—Formal Reviews 18

Division 1—Establishment of Formal Reviews 18

93 Establishment of Formal Review by instrument 1894 Conversion of Formal Review into a Board of Inquiry 1895 Conversion of Formal Review into a Royal Commission 18

Division 2—Arrangements to facilitate Formal Reviews 18

96 Staffing and services 1897 Certain public sector values do not apply to Formal Review

staff 1898 Expenses and financial obligations of Formal Review 18

Division 3—Conduct of Formal Review inquiries 18

99 Manner of inquiry of Formal Review 18100 Members may act separately 18101 Evidence 18102 Participation in Formal Review inquiries 18103 Practice directions, statements and notes 18


104 Access to Formal Review proceedings 18105 Power to expel persons who disrupt proceedings 18106 Restriction on publication of information relating to Formal

Review inquiries 18

Division 5—Reports of Formal Reviews 18

107 Report of Formal Review 18108 Adverse findings 18109 Tabling of Formal Review report 18


110 Compellability of members 18111 Protection of participants 18

Division 7—Formal Reviews and courts 18




114 Costs of attending Formal Review 18


115 Confidentiality for Formal Review officers 18

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116 Disclosure or provision of information by members or authorised persons 18

117 Taking advantage of information 18


118 Offence to contravene exclusion or restriction orders 18119 Offence to hinder, obstruct or cause serious disruption to



employees 18122 Offence of taking detrimental action against members 18

Part 5—General 18

Division 1—General provisions for inquiries 18

123 Powers of Royal Commissions and Boards of Inquiry 18124 Transfer of records 18125 Exemption from Freedom of Information Act 1982 18126 Continuity of inquiries 18

Division 2—Ancillary provisions for offences 18

127 Definitions 18128 Criminal liability of officers of bodies corporate—accessorial

liability 18129 Offences by bodies corporate 18130 Maximum fine for bodies corporate 18131 Responsible agency for the Crown 18132 Proceedings against successors to public bodies 18

Division 3—Regulations 18

133 Regulations 18

Part 6—Related and consequential amendments 18

Division 1—Independent Broad-based Anti-corruption Commission Act 2011 18

134 Disclosure or provision of information by the IBAC 18135 Privilege against self-incrimination abrogated—witness

summons 18

Division 2—Parliamentary Committees Act 2003 18

136 New section 37A inserted 18137 Immunity from review 18

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Division 3—Public Administration Act 2004 18

138 Definitions 18139 Public entities 18140 Delegation 18141 Inquiries 18142 New sections 57 and 58 substituted 18143 New section 60A inserted 18144 New Division 4A inserted in Part 4 18145 Transitional provision 18

Division 4—Consequential repeals and amendments 18

146 Repeal of Acts 18147 Consequential amendments 18148 Amendment consequential on Legal Profession Uniform Law

Application Act 2014 18

Division 5—Repeal of Part and Schedule 2 18

149 Repeal of Part and Schedule 2 18

Part 7—Transitional 18

150 Inquiries by commissions and boards under Part IVA of the Constitution Act 1975 18

Schedules 18

Schedule 1—Offences to which accessorial liability attaches 18

Schedule 2—Consequential amendments 18

1 Administrative Law Act 1978 182 Ambulance Services Act 1986 183 Appeal Costs Act 1998 184 Architects Act 1991 185 Building Act 1993 186 Bus Safety Act 2009 187 Charities Act 1978 188 Children, Youth and Families Act 2005 189 Constitution Act 1975 1810 Co-operative Housing Societies Act 1958 1811 Corrections Act 1986 1812 Country Fire Authority Act 1958 1813 Defamation Act 2005 1814 Disability Act 2006 1815 Education and Training Reform Act 2006 1816 Evidence (Miscellaneous Provisions) Act 1958 1817 Firearms Act 1996 1818 Freedom of Information Act 1982 1819 Health Records Act 2001 18

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20 Health Services Act 1988 1821 Health Services (Conciliation and Review) Act 1987 1822 Information Privacy Act 2000 1823 Interpretation of Legislation Act 1984 1824 Local Government Act 1989 1825 Marine Safety Act 2010 1826 Mineral Resources (Sustainable Development) Act 1990 1827 Ombudsman Act 1973 1828 Privacy and Data Protection Act 2014 1829 Protected Disclosure Act 2012 1830 Public Health and Wellbeing Act 2008 1831 Public Records Act 1973 1832 Rail Safety (Local Operations) Act 2006 1833 State Electricity Commission Act 1958 1834 Surveillance Devices Act 1999 1835 Surveying Act 2004 1836 Transfer of Land Act 1958 1837 Transport Accident Act 1986 1838 Transport (Compliance and Miscellaneous) Act 1983 1839 Veterinary Practice Act 1997 1840 Victims of Crime Assistance Act 1996 1841 Victoria Grants Commission Act 1976 1842 Victoria Police Act 2013 1843 Victorian Commission for Gambling and Liquor Regulation

Act 2011 1844 Victorian Inspectorate Act 2011 1845 Witness Protection Act 1991 1846 Workplace Injury Rehabilitation and Compensation Act 2013 1847 Wrongs Act 1958 18

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Endnotes 18

1 General information 18

2 Table of Amendments 18

3 Amendments Not in Operation 18

4 Explanatory details 18

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Version No. 003


Version incorporating amendments as at1 July 2015

The Parliament of Victoria enacts:

PART 1—PRELIMINARY

1 Purpose and overview

(1) The main purpose of this Act is to provide for the establishment and conduct of inquiries in Victoria.

(2) In overview, this Act provides for—

(a) the establishment and conduct of the following types of inquiry—

(i) Royal Commissions;

(ii) Boards of Inquiry;

(iii) Formal Reviews; and

(b) powers for each type of inquiry; and

(c) matters relating to privilege, secrecy and protection from liability in relation to inquiries; and

(d) offences in relation to inquiries.

(3) However, this Act does not apply to or affect inquiries established otherwise than under this Act.Note

See sections 8 and 53(3).

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2 Commencement

(1) Subject to subsection (3), this Act, other than section 148, comes into operation on a day or days to be proclaimed.

(2) Section 148 comes into operation on the later of—

(a) the day on which section 3 comes into operation; and

(b) the day on which section 158 of the Legal Profession Uniform Law Application Act 2014 comes into operation.

(3) If a provision of this Act, other than section 148, does not come into operation before 1 August 2015, it comes into operation on that day.

3 Definitions

In this Act—

* * * * *

authorised officer—see section 27;

Board of Inquiry means a Board of Inquiry established under section 53;

Board of Inquiry officer means a member or a member of staff of a Board of Inquiry;

chairperson—

(a) of a Royal Commission, means—

(i) if there is only one commissioner, that commissioner; or

(ii) if there is more than one commissioner, the commissioner specified in the letters patent

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S. 3 def. of Australian legal practitioner repealed by No. 67/2014 s. 148.

establishing the Royal Commission as the commissioner who is to chair the Royal Commission;

(b) of a Board of Inquiry, means—

(i) if there is only one member, that member; or

(ii) if there is more than one member, the member specified in the establishing Order for the Board of Inquiry as the member who is to chair the Board of Inquiry;

(c) of a Formal Review, means—

(i) if there is only one member, that member; or

(ii) if there is more than one member, the member specified in the establishing instrument for the Formal Review as the member who is to chair the Formal Review;

commissioner means a person appointed to constitute a Royal Commission, whether solely or with other persons;

Court Services Victoria has the same meaning as in the Court Services Victoria Act 2014;

Crown Prosecutor means the Chief Crown Prosecutor, a Senior Crown Prosecutor, a Crown Prosecutor or an Associate Crown Prosecutor appointed under the Public Prosecutions Act 1994;

Electoral Commissioner has the same meaning as in the Electoral Act 2002;

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establishing instrument, in relation to a Formal Review, means the instrument under section 93 establishing the Formal Review;

establishing Order, in relation to a Board of Inquiry, means the Order in Council under section 53 establishing the Board of Inquiry;

Formal Review means a Formal Review established under section 93;

Formal Review officer means a member or a member of staff of a Formal Review;

function includes power and duty;

IBAC has the same meaning as in the Independent Broad-based Anti-corruption Commission Act 2011;

judicial officer means any of the following—

(a) a Judge of the Supreme Court;

(b) a reserve Judge of the Supreme Court;

(c) an Associate Judge of the Supreme Court;

(d) a reserve Associate Judge of the Supreme Court;

(e) a Judge or reserve Judge of the Supreme Court who is appointed or assigned to VCAT;

(f) a judge of the County Court;

(g) a reserve judge of the County Court;

(h) an associate judge of the County Court;

(i) a reserve associate judge of the County Court;

(j) a person referred to in paragraph (f) or (g) who is appointed or assigned to VCAT;

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S. 3 def. of judicial officer substituted by No. 10/2015 s. 12(a).

(k) a magistrate;

(l) a reserve magistrate;

(m) a magistrate or reserve magistrate who is appointed or assigned to the Children's Court, the Coroners Court or VCAT;

(n) a reserve coroner;

(o) a person appointed under section 94 of the Coroners Act 2008;

(p) a judicial registrar of the Supreme Court, the County Court, the Magistrates' Court, the Children's Court or the Coroners Court;

member—

(a) of a Board of Inquiry, means a person appointed by the establishing Order for the Board of Inquiry;

(b) of a Formal Review, means a person appointed by the establishing instrument for the Formal Review;

(c) of VCAT, has the same meaning as member has, in relation to the Tribunal, in section 3 of the Victorian Civil and Administrative Tribunal Act 1998;

member of staff—

(a) of a Royal Commission, means any staff, consultant or Australian legal practitioner referred to in section 9;

(b) of a Board of Inquiry, means any staff, consultant or Australian legal practitioner referred to in section 56;

(c) of a Formal Review, means any staff or consultant referred to in section 96;

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S. 3 def. of member amended by No. 10/2015 s. 12(b).

non-judicial member of VCAT means a member of VCAT who is not a judicial officer;

notice to attend—

(a) in relation to a Royal Commission, means a notice served under section 17(1)(b), (c) or (d);

(b) in relation to a Board of Inquiry, means a notice served under section 64(1)(b), (c) or (d);

notice to produce—

(a) in relation to a Royal Commission, means a notice served under section 17(1)(a);

(b) in relation to a Board of Inquiry, means a notice served under section 64(1)(a);

perform a function includes exercise a power;

police gaol has the same meaning as in the Corrections Act 1986;

police officer has the same meaning as in the Victoria Police Act 2013;

prison has the same meaning as in the Corrections Act 1986;

publish means disseminate or provide access to the public or a section of the public by any means, including by—

(a) publication in a book, newspaper, magazine or other written publication; or

(b) broadcast by radio or television; or

(c) public exhibition; or

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S. 3 def. of non-judicial member of VCAT substituted by No. 10/2015 s. 12(c).

(d) broadcast or electronic communication—

and publication must be construed accordingly;

Royal Commission means a Royal Commission established under section 5, including a Royal Commission referred to in section 55 or 95;

Royal Commission officer means a commissioner or a member of staff of a Royal Commission;

Victorian court means any of the following—

(a) the Supreme Court;

(b) the County Court;

(c) the Magistrates' Court;

(d) the Children's Court;

(e) the Coroners Court;

Victorian Inspectorate has the same meaning as in the Victorian Inspectorate Act 2011.

4 Act binds the Crown

This Act binds the Crown in right of Victoria and, so far as the legislative power of Parliament permits, the Crown in all its other capacities.

Note

See also sections 8 and 131.

__________________

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PART 2—ROYAL COMMISSIONS

Division 1—Establishment of Royal Commissions

5 Establishment of Royal Commission by letters patent

(1) The Governor, with the advice of the Premier, may issue a commission by letters patent under the Public Seal of the State appointing one or more natural persons to constitute a Royal Commission to inquire into and report on the terms of reference specified in the letters patent.

(2) Letters patent issued under this section—

(a) must specify the following—

(i) the person or persons appointed to constitute the Royal Commission;

(ii) if more than one person is appointed, the person who is to chair the Royal Commission;

(iii) the terms of reference of the Royal Commission; and

(b) may specify any or all of the following—

(i) a time by which the Royal Commission is to report on its inquiry;

(ii) whether the commissioners may perform functions conferred on them under the law of the Commonwealth, another State or a Territory;

(iii) whether the Royal Commission is authorised to incur expenses and financial obligations to be met from the Consolidated Fund and, if so, the maximum amount of those expenses and obligations;

Part 1—Preliminary


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(iv) the manner in which the inquiry of the Royal Commission is to be conducted;

(v) if there is more than one commissioner, which (if any) of the functions of the Royal Commission must be performed by the commissioners jointly and which (if any) may be performed by one or more commissioners separately;

(vi) any other matter the Governor considers appropriate.

Note

See section 123 for restrictions on the scope and powers of a Royal Commission in relation to certain entities.

6 Publication of letters patent

The Premier must cause the letters patent establishing a Royal Commission, and any variation of them, to be published in the Government Gazette as soon as practicable after they are issued or varied.

7 Concurrent Royal Commissions

If provided for in the letters patent establishing a Royal Commission, a commissioner may perform any functions that are conferred on the commissioner under the law of the Commonwealth, another State or a Territory in conjunction with the performance of the commissioner's functions under this Act.

8 Relationship with the Royal prerogative

Nothing in this Act affects the prerogative of the Crown to issue a commission for an inquiry other than under this Act.



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Division 2—Arrangements to facilitate Royal Commissions

9 Staffing and services

(1) There may be employed under Part 3 of the Public Administration Act 2004 any employees that are necessary for a Royal Commission to perform its functions.Note

See also section 18 of the Public Administration Act 2004, which provides for delegation powers of a public service body Head under that Act. That section would permit employment functions under that Act to be delegated to the chairperson of a Royal Commission.

(2) The chairperson of a Royal Commission may—

(a) enter into agreements or arrangements for the use of the services of any staff of a Department, statutory authority or other public body; and

(b) engage persons with suitable qualifications and experience as consultants; and

(c) engage one or more Australian legal practitioners to assist the Royal Commission as counsel; and

(d) enter into agreements or arrangements for the provision of any other services to the Royal Commission.

(3) The engagement of an Australian legal practitioner under subsection (2)(c) may only be made with the approval of the Premier.

(4) The employment or engagement of members of staff of a Royal Commission may be on any terms and conditions the chairperson considers appropriate and all members of staff are subject to the direction of the chairperson.



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(5) The chairperson of a Royal Commission may, by instrument, delegate to another Royal Commission officer a function under this section, other than this power of delegation.Note

Section 18(2) of the Public Administration Act 2004 provides for subdelegation of powers delegated under that section.

10 Certain public sector values do not apply to Royal Commission staff

If the public sector values referred to in section 7(1)(a)(i) and (c)(iii) of the Public Administration Act 2004 would, but for this section, apply to a member of staff of a Royal Commission, those public sector values do not apply to the member of staff in respect of their employment or engagement with the Royal Commission.Note

Section 7(1)(a)(i) and (c)(iii) of the Public Administration Act 2004 deal with providing advice to the Government and implementing Government policies and programs.

11 Expenses and financial obligations of Royal Commission

(1) Expenses and financial obligations may be incurred by a Royal Commission to be met from the Consolidated Fund only—

(a) if authorised by the letters patent establishing the Royal Commission; and

(b) to the extent of the maximum amount specified in the letters patent.

(2) The Consolidated Fund is appropriated to the extent necessary to allow expenses and financial obligations to be incurred and met as authorised by subsection (1).



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(3) To avoid doubt, subsection (1) does not prevent—

(a) the entering into of agreements or arrangements, or the engagement of persons, under section 9 at no cost to the Royal Commission; or

(b) the incurring of expenses and financial obligations to be met from sources other than the Consolidated Fund.

Division 3—Conduct of inquiries by Royal Commissions

12 Manner of inquiry of Royal Commission

A Royal Commission may conduct its inquiry in any manner that it considers appropriate, subject to—

(a) the requirements of procedural fairness; and

(b) the letters patent establishing the Royal Commission; and

(c) this Act, the regulations and any other Act.

13 Commissioners may act separately

(1) This section applies if a Royal Commission is constituted by more than one commissioner.

(2) Subject to this Act and the letters patent establishing the Royal Commission, the chairperson of the Royal Commission may determine from time to time that any of the functions of the Royal Commission may be performed by one or more commissioners separately.Example

Subject to the letters patent, the chairperson could determine that the individual commissioners hold concurrent hearings.



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14 Evidence

A Royal Commission is not bound by the rules of evidence or any practices or procedures applicable to courts of record and may inform itself on any matter as it sees fit.

15 Participation in Royal Commission inquiries

(1) A Royal Commission may allow, to the extent and in the manner determined by the Royal Commission—

(a) any person to appear or otherwise participate in an inquiry; and

(b) any person to be legally represented in an inquiry.

(2) In allowing a person to appear or participate in an inquiry, or to be legally represented, the Royal Commission may have regard to the following factors—

(a) whether the person has any direct or special interest in the subject matter of the inquiry;

(b) the likelihood that the Royal Commission may make an adverse finding against the person;

(c) the ability of the person to assist the Royal Commission in the inquiry;

(d) the age of the person;

(e) any other matter the Royal Commission considers relevant.

16 Practice directions, statements and notes

(1) A Royal Commission may from time to time issue practice directions, statements or notes in relation to its inquiry.



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(2) Practice directions, statements or notes issued under subsection (1) must not be inconsistent with the letters patent, this or any other Act or any regulations made under this or any other Act.

(3) Practice directions, statements or notes issued under subsection (1) are not legislative instruments within the meaning of the Subordinate Legislation Act 1994.

Division 4—Powers of Royal Commissions for production of documents and other things and obtaining evidence

17 Power to compel production of documents and other things or attendance of witness

(1) For the purposes of its inquiry, a Royal Commission may serve written notice on a person requiring the person to—

(a) produce a specified document or other thing to the Royal Commission or a Royal Commission officer before a specified time and in the specified manner; or

(b) attend the Royal Commission at a specified time and place to produce a specified document or other thing; or

(c) attend the Royal Commission at a specified time and place, and from then on from day to day until excused, to give evidence; or

(d) attend the Royal Commission at a specified time and place, and from then on from day to day until excused, to give evidence and to produce a specified document or other thing.

(2) A notice to produce or notice to attend in relation to a Royal Commission—

(a) must be in the prescribed form (if any); and



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(b) must contain the following information—

(i) a statement outlining the provisions of sections 23 and 46;

(ii) examples of what may constitute a reasonable excuse for failing to comply with the notice;

(iii) how the person may object to the notice;

(iv) any other prescribed information; and

(c) must be served in accordance with section 19.

(3) Subsection (2)(a) does not apply to a notice to produce or notice to attend for the purposes of an inquiry of a Royal Commission that is being conducted concurrently under this Act and under the law of the Commonwealth, another State or a Territory.

18 Variation or revocation of notice to produce or notice to attend

(1) A person on whom a notice to produce or notice to attend in relation to a Royal Commission is served may make a claim to the Royal Commission—

(a) that the person has or will have a reasonable excuse for failing to comply with the notice; or

(b) in the case of a notice to produce, or a notice to attend under section 17(1)(b) or (d), that a document or other thing specified in the notice is not relevant to the subject matter of the inquiry.



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(2) Without limiting what may be a reasonable excuse for the purposes of subsection (1)(a), it is a reasonable excuse for a person to fail to comply with a notice by refusing to give information to a Royal Commission if the information—

(a) in the case of a natural person, might tend to incriminate the person or make the person liable to a penalty in relation to—

(i) proceedings for an offence with which the person has been charged that have not finally been disposed of; or

(ii) proceedings for the imposition or recovery of a penalty that have been commenced against the person but not finally disposed of; or

(b) is the subject of parliamentary privilege; or

(c) is the subject of public interest immunity; or

(d) is prohibited from disclosure by a court order; or

(e) is prohibited from disclosure by a provision of another enactment that specifically applies to the giving of information or the production of documents or other things to a Royal Commission; or

(f) is prohibited from disclosure by a provision of another enactment that is prescribed by the regulations for the purposes of section 34.

(3) If the Royal Commission is satisfied that the person's claim is made out, the Royal Commission, by further written notice served on the person, may vary or revoke the notice.



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(4) A Royal Commission, by further written notice served on a person, may at any time on its own initiative vary or revoke a notice to produce or notice to attend served on the person.

(5) A notice varying or revoking a notice to produce or notice to attend must be served in accordance with section 19.

19 Service of notice to produce or notice to attend

(1) Subject to subsection (2), a notice to produce or notice to attend, or a notice varying or revoking a notice to produce or notice to attend, must be served at a reasonable time, being not less than 7 days, before the date on which the person is required to attend or otherwise comply with the notice.

(2) A Royal Commission may serve a notice to attend requiring immediate attendance by a person if—

(a) the Royal Commission considers on reasonable grounds that a delay in the person's attendance is likely to result in—

(i) evidence being lost or destroyed; or

(ii) the commission of an offence; or

(iii) the escape of the person on whom the notice is served; or

(iv) serious prejudice to the conduct of the inquiry to which the notice relates; or

(b) the person on whom the notice is served consents to immediate attendance.

(3) A notice to produce or notice to attend directed to a natural person must be served by serving a copy of the notice on the person personally.

(4) A notice to produce or notice to attend directed to a body corporate must be served by leaving a copy of the notice at the registered office or principal



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place of business of the body corporate with a person apparently employed at that office or place and who is apparently at least 18 years of age.

(5) Subsection (4) is in addition to, and not in derogation of, sections 109X and 601CX of the Corporations Act.

20 Witness already in custody

(1) If a notice to attend a Royal Commission is issued to a person who is in a prison or a police gaol, the Royal Commission may give a written direction that the person be brought before the Royal Commission as required by the notice to attend.

(2) A direction under subsection (1) must be in the prescribed form (if any).

21 Power to take evidence on oath or affirmation

(1) A Royal Commission may require a person attending an inquiry of the Royal Commission, whether in accordance with a notice to attend or otherwise, to give evidence or answer questions on oath or affirmation.

(2) A commissioner, or a member of staff of the Royal Commission who is authorised to do so by a commissioner, may administer an oath or affirmation to a person for the purposes of subsection (1).

22 Powers in relation to documents and other things

(1) A commissioner, or a member of staff of a Royal Commission authorised by a commissioner, may—

(a) inspect any document or other thing produced to the Royal Commission; and

(b) retain the document or other thing for as long as is reasonably necessary for the purposes of the inquiry; and



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(c) copy any document or other thing produced to the Royal Commission necessary for the purposes of the inquiry.

(2) If the retention of a document or other thing under subsection (1) ceases to be reasonably necessary for the purposes of its inquiry, the Royal Commission, at the request of a person who appears to be entitled to the document or other thing, must cause the document or other thing to be delivered to the person unless it has been given to another person or body under section 44.

(3) A reference in this section to the purposes of an inquiry includes a reference to—

(a) the disclosure of information under section 44; and

(b) any concurrent Royal Commissions.

23 Failure to comply with notice or requirement

(1) If the chairperson of a Royal Commission is satisfied that a person has, without reasonable excuse, failed to comply with a notice to produce or notice to attend in relation to the Royal Commission or a requirement under section 21, the chairperson may apply to the Supreme Court for an order under this section.

(2) On an application under subsection (1), the Supreme Court may order the person to comply with the notice or requirement within the period specified by the Court.

Note




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Division 5—Control of proceedings and publication of information and evidence

24 Access to Royal Commission proceedings

(1) A commissioner may make an order excluding any person from a proceeding of the Royal Commission if—

(a) prejudice or hardship might be caused to any person, including harm to their safety or reputation; or

(b) the nature and subject matter of the proceeding is sensitive; or

(c) there is a possibility of any prejudice to legal proceedings; or

(d) the conduct of the proceeding would be more efficient and effective; or

(e) the commissioner otherwise considers the exclusion appropriate.

(2) The Royal Commission must cause a copy of the order to be posted—

(a) on a door of the place where the proceeding is being conducted; or

(b) in another conspicuous place where notices are usually posted at the place where the proceeding is being conducted.

(3) An order made under subsection (1) is not a legislative instrument within the meaning of the Subordinate Legislation Act 1994.

25 Power to expel persons who disrupt proceedings

A Royal Commission may expel a person from a proceeding of the Royal Commission if the person disrupts the proceeding.



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26 Restriction on publication of information relating to Royal Commission inquiries

(1) Subject to subsection (2), a commissioner may make an order prohibiting or restricting the publication of—

(a) any information that may enable the identity of a person who has given, or is to give, information or evidence to the Royal Commission for the purposes of an inquiry to be ascertained; or

(b) any information or evidence given to the Royal Commission for the purposes of an inquiry.

(2) A commissioner may make an order prohibiting or restricting the publication of information or evidence if—


(b) the nature and subject matter of the information is sensitive; or



(e) the commissioner otherwise considers the prohibition or restriction appropriate.

(3) If the order is made during a proceeding, the Royal Commission must cause a copy of the order to be posted—




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(4) If the order is made in relation to information that is given by the Royal Commission to another person, the Royal Commission must cause a copy of the order to be given to that person.

(5) An order made under this section is not a legislative instrument within the meaning of the Subordinate Legislation Act 1994.

Division 6—Entry, search and seizure powers of Royal Commissions

27 Authorised officers

(1) For the purposes of this Division, an authorised officer is—

(a) the chairperson of a Royal Commission; or

(b) a person authorised under subsection (2).

(2) The chairperson of a Royal Commission may authorise a person for the purposes of this Division.

28 Search warrant

(1) Subject to subsection (2), an authorised officer may apply to the Magistrates' Court for a search warrant in relation to either or both of the following—

(a) particular premises, if the authorised officer believes on reasonable grounds that entry to the premises (including any vehicle, vessel or aircraft on or in those premises) is necessary for the purpose of the Royal Commission's inquiry;



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(b) a particular vehicle, vessel or aircraft located in a public place, if the authorised officer believes on reasonable grounds that entry to the vehicle, vessel or aircraft is necessary for the purpose of the Royal Commission's inquiry.

(2) If a magistrate is satisfied by evidence on oath, whether oral or by affidavit, that there are reasonable grounds for the belief under subsection (1)(a) or (b), the magistrate may issue a search warrant authorising any police officer or other prescribed person named in the warrant—

(a) to enter and search the premises or vehicle, vessel or aircraft named or described in the search warrant and inspect any document or other thing at those premises or on or in that vehicle, vessel or aircraft; and

(b) to make a copy of any document that the police officer or other person reasonably considers may be relevant to the inquiry; and

(c) to take possession of any document or other thing that the police officer or other person reasonably considers may be relevant to the inquiry.

(3) A search warrant issued under this section must state—

(a) the purpose for which the search is required; and

(b) any conditions to which the search warrant is subject; and

(c) whether entry is authorised to be made at any time of the day or night or during stated hours of the day or night; and



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(d) a day, not later than 28 days after the issue of the search warrant, on which the search warrant ceases to have effect.

(4) A search warrant must be in the prescribed form (if any).

(5) Except as otherwise provided by this Act, the rules to be observed with respect to search warrants under the Magistrates' Court Act 1989 extend and apply to warrants under this section.

29 Procedure for executing search warrant

(1) On executing a search warrant, the person executing it—

(a) must announce that the person is authorised by the search warrant to enter the premises, vehicle, vessel or aircraft, as the case requires, unless, in the case of a vehicle, vessel or aircraft, it is in a public place; and

(b) if the person has been unable to obtain unforced entry, must give any person at the premises or in control of the vehicle, vessel or aircraft an opportunity to allow entry to the premises, vehicle, vessel or aircraft, as the case requires.

(2) A person executing a search warrant need not comply with subsection (1) if the person believes on reasonable grounds that immediate entry to the premises, vehicle, vessel or aircraft is required to ensure—

(a) the safety of any person; or

(b) that the effective execution of the warrant is not frustrated.



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(3) If the occupier is present at premises where a search warrant is being executed, the person executing the warrant must—

(a) identify themselves to the occupier; and

(b) give the occupier a copy of the warrant.

(4) If the occupier is not present at premises where a search warrant is being executed, the person executing the warrant must—

(a) identify themselves to a person at the premises who is apparently over the age of 18 years; and

(b) give that person a copy of the warrant.

(5) If there is no person apparently over the age of 18 years present at premises where a search warrant is being executed, the person executing the warrant must leave a copy of the warrant in a conspicuous place at the premises unless the Royal Commission has given a direction under subsection (6).

(6) A Royal Commission may direct that a copy of a search warrant not be left at premises where no person apparently over the age of 18 years is present if the Royal Commission is satisfied that it would be contrary to the public interest for the copy to be left at the premises.

30 Copies or receipts to be given for documents or other things

(1) If a person takes possession under a search warrant of—

(a) a document, disk or tape or other thing that can be readily copied; or



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(b) a storage device the information in which can be readily copied—

the person, on request by the occupier, must give a copy of the document, thing or information to the occupier as soon as practicable after taking possession of it, unless it would be contrary to the public interest to do so.

(2) If a person takes possession of a document or other thing under a search warrant and has not provided a copy of the document, thing or information under subsection (1) the person must provide a receipt for the document or other thing as soon as practicable after taking possession of it.

(3) A receipt under subsection (2) must be in the prescribed form (if any).

31 Return of documents and other things

(1) A Royal Commission must take all reasonable steps to return a document or other thing seized under a search warrant to the person from whom it was seized if the document or other thing is required as evidence relating to a legal proceeding.

(2) A Royal Commission must immediately take all reasonable steps to return a document or other thing seized under a search warrant to the person from whom it was seized if the Royal Commission is no longer satisfied that its retention is necessary for the purposes of—

(a) an inquiry; or

(b) a report of the Royal Commission on an inquiry; or

(c) a legal proceeding arising out of, or connected with, an inquiry.



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Division 7—Application of privileges and statutory secrecy to Royal Commissions

32 Legal professional privilege does not apply

(1) It is not a reasonable excuse for a person to refuse or fail to comply with a requirement under this Act to give information (including answering a question) or produce a document or other thing to a Royal Commission that the information, document or other thing is the subject of legal professional privilege.

(2) Information or a document or other thing does not cease to be the subject of legal professional privilege only because it is given or produced to a Royal Commission in accordance with a requirement to do so under this Act.

33 Privilege against self-incrimination does not apply

(1) Subject to subsection (2), it is not a reasonable excuse for a person to refuse or fail to comply with a requirement under this Act to give information (including answering a question) or produce a document or other thing to a Royal Commission that the information, document or other thing might tend to incriminate the person or make the person liable to a penalty.Note

See section 40 as to the admissibility of answers, information, documents and other things given to a Royal Commission.

(2) It is a reasonable excuse for a natural person to refuse or fail to comply with a requirement referred to in subsection (1) that the information, document or other thing might tend to incriminate the person, or make the person liable to a penalty, in relation to—



27

(a) proceedings for an offence with which the person has been charged that have not finally been disposed of; or

(b) proceedings for the imposition or recovery of a penalty that have been commenced against the person but not finally disposed of.

34 Statutory secrecy and confidentiality provisions

(1) It is not a reasonable excuse for a person to refuse or fail to comply with a requirement under this Act to give information (including answering a question) or produce a document or other thing to a Royal Commission that another enactment prohibits the person from giving the information or producing the document or other thing or imposes a duty of confidentiality on the person in relation to the information, document or other thing.

(2) The person is not subject to any criminal, civil, administrative or disciplinary proceedings or action only because the person complies with the requirement.

(3) Subsections (1) and (2) do not apply to—

(a) a provision of another enactment that specifically applies to the giving of information or the production of documents or other things to a Royal Commission; or

(b) a provision of another enactment that is prescribed by the regulations for the purposes of this section.

(4) If a Royal Commission receives information or a document or other thing referred to in this section in an inquiry, any provision of another enactment that prohibits the disclosure of the information, document or other thing or imposes any other duty of confidentiality in relation to the information,



28

document or other thing does not apply to the Royal Commission.

Division 8—Reports of Royal Commissions

35 Report of Royal Commission

(1) A Royal Commission must deliver a report of its inquiry to the Governor.

(2) A report may contain any recommendations the Royal Commission considers appropriate.

(3) A report must be delivered—

(a) within the time specified in the letters patent establishing the Royal Commission; or

(b) if no time is so specified, as soon as practicable after the Royal Commission completes the inquiry.

36 Adverse findings

(1) If a Royal Commission proposes to make a finding that is adverse to a person, the Royal Commission must be satisfied that the person—

(a) is aware of the matters on which the proposed finding is based; and

(b) has had an opportunity, at any time during the course of the inquiry, to respond on those matters.

(2) A Royal Commission must consider a person's response under subsection (1)(b) (if any) before making a finding that is adverse to the person.

(3) If the Royal Commission includes a finding that is adverse to a person in its report, the Royal Commission must fairly set out the person's response under subsection (1)(b) (if any) in the report.



29

37 Tabling of Royal Commission report

(1) Within 30 days after the Governor receives the report of a Royal Commission, the Premier must cause the following material (the Royal Commission material) to be laid before each House of Parliament or, if neither House is then sitting, to be given to the clerk of each House—

(a) a copy of the report; or

(b) a copy of part of the report, together with a statement that the remaining part of the report is not to be tabled in Parliament at this time, including the reasons why it is not to be tabled; or

(c) a statement that the report has been received but is not to be tabled in Parliament at this time, including the reasons why it is not to be tabled.

(2) If the Premier proposes to give the Royal Commission material to the clerk of each House, the Premier must—

(a) give at least one business day's notice of the Premier's intention to do so to the clerk of each House; and

(b) give the Royal Commission material to the clerk of each House on the day indicated in the notice.

(3) The clerk of each House must—

(a) notify each member of the House of the receipt of a notice under subsection (2)(a) on the same day that the clerk receives that notice; and

(b) make available copies of the Royal Commission material for each member of the House as soon as practicable after the Royal



30

Commission material is received under subsection (2)(b); and

(c) cause the Royal Commission material to be laid before the House on the next sitting day of the House.

(4) Royal Commission material that is given to the clerks under subsection (2)(b) is taken to have been published by order, or under the authority, of the Houses of Parliament.

(5) The publication of Royal Commission material in accordance with this section is absolutely privileged and the provisions of sections 73 and 74 of the Constitution Act 1975 and of any other enactment or rule of law relating to the publication of the proceedings of Parliament apply to and in relation to the publication of the Royal Commission material as if it were a report to which those sections applied and had been published by the Government Printer under the authority of Parliament.

(6) If the report of a Royal Commission is not tabled, or is tabled in part, under this section and the Premier subsequently determines that the report, or a further part or parts of the report, should be tabled, this section applies, with any necessary modifications, to the tabling and publication of the report or the relevant part or parts of the report.

Division 9—Protection from legal liability

38 Compellability of commissioners

(1) A person who is or was a commissioner is not compellable to give evidence in relation to the Royal Commission in any criminal, civil, administrative or disciplinary proceedings.



31

(2) Nothing in subsection (1) prevents a person who is or was a commissioner giving evidence voluntarily.

39 Protection of participants

(1) A commissioner has, in respect of the performance of the commissioner's functions as commissioner, the same protection and immunity as a judge of the Supreme Court has in the performance of the judge's duties as judge.

(2) A member of staff of a Royal Commission has, in the performance of the person's functions in the Royal Commission's inquiry, the same protection and immunity as a judge of the Supreme Court has in the performance of the judge's duties as judge.

(3) A person legally representing another person in a Royal Commission's inquiry has the same protection and immunity as an Australian legal practitioner has in representing a party in proceedings in the Supreme Court.

(4) A person who gives information or evidence, or produces a document or other thing, to a Royal Commission has the same protection and immunity as a witness has in proceedings in the Supreme Court.

Division 10—Royal Commissions and courts

40 Admissibility of answers, information, documents and other things

(1) Any answer, information, document or other thing given or produced to a Royal Commission by a person and the fact that an answer, information, document or other thing was given or produced, is not admissible in evidence, or otherwise able to be used, against the person in any other proceedings, except in proceedings for—

(a) an offence against this Act; or



32

(b) an offence against section 254 or 314 of the Crimes Act 1958 in relation to the Royal Commission.

(2) Subsection (1) does not apply to a document or other thing if it 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 tender it in evidence, or otherwise to use it, in the other proceedings.

(3) In this section—

other proceedings means criminal, civil or administrative proceedings before a court, tribunal or person acting judicially or disciplinary proceedings, including proceedings that were pending when the answer, information, document or other thing was given or produced to the Royal Commission.

41 Referral of questions of law to Supreme Court

(1) The chairperson of a Royal Commission may refer any question of law arising in an inquiry to the Supreme Court for decision.

(2) A referral may be made under subsection (1) at the request of any person or on the chairperson's own initiative.

Division 11—Assistance for witnesses

42 Costs of attending Royal Commission

(1) This section applies to a person who attends a Royal Commission—

(a) in accordance with a notice to attend; or

(b) at the request of the Royal Commission.



33

(2) Subject to subsection (3), the person is entitled to be paid expenses and allowances in accordance with the prescribed scale.

(3) Subsection (2) does not apply—

(a) in an inquiry that is being conducted concurrently under this Act and under the law of the Commonwealth, another State or a Territory, unless the letters patent establishing the Royal Commission provide otherwise; or

(b) if the letters patent establishing the Royal Commission do not authorise the Royal Commission to incur expenses or financial obligations to be met from the Consolidated Fund.

Division 12—Confidentiality, sharing and use of information

43 Confidentiality for Royal Commission officers

A person who is or was a Royal Commission officer must not knowingly disclose any information acquired by the person by reason of being a Royal Commission officer, or in the course of the performance of functions under this Act or any other Act, except—

(a) for the performance of the functions of the Royal Commission officer under this or any other Act; or

(b) for the purpose of any criminal proceedings under section 254 or 314 of the Crimes Act 1958 in relation to the Royal Commission; or

(c) 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



34

(d) as is otherwise authorised or required under this Act or any other Act.

Penalty: 120 penalty units or imprisonment for 12 months.

Note

Section 128 applies to an offence against this section.

44 Disclosure or provision of information by commissioners or authorised persons

(1) A commissioner or a person authorised by a commissioner may at any time provide or disclose any information referred to in section 43, or give any document or other thing, to any person or body if the commissioner or authorised person—

(a) considers that the information, document or other thing is relevant to the performance of the functions of the person or body; and

(b) considers it appropriate to disclose the information or give the document or other thing to the person or body.

(2) If a document or other thing is given to a person or body under subsection (1), the person or body must, at the request of a Royal Commission officer, return the document or other thing if it ceases to be reasonably necessary for the person or body to retain the document or other thing for the purposes for which it was given to the person or body.

45 Taking advantage of information

(1) This section applies to a person to whom information is given by a Royal Commission or a Royal Commission officer during the course of the Royal Commission's inquiry.



35

(2) The person to whom the information is given must not take advantage of the information to benefit the person or any other person.

Penalty: 120 penalty units or imprisonment for 12 months or both.

Note

Section 128 applies to an offence against this subsection.

(3) A person does not commit an offence against subsection (2) if the information is in the public domain at the time the person takes advantage of it, otherwise than as a result of a disclosure that the person knows or ought to have known was unlawful.

Division 13—Offences

46 Offence to fail to comply with a notice to produce or attend

A person who is duly served with a notice to produce or notice to attend in relation to a Royal Commission must not, without reasonable excuse, refuse or fail to comply with the notice.

Penalty: 240 penalty units or imprisonment for 2 years.

Notes

1 See Division 7 which provides for the non-application of various privileges and statutory secrecy and confidentiality provisions.

2 See also section 72 of the Criminal Procedure Act 2009, which deals with the evidential burden of proof.

3 Section 128 applies to an offence against this section.

47 Offence to fail to take oath, make affirmation or answer question



36

(1) A person who is duly served with a notice to attend a Royal Commission under section 17(1)(c) or (d) must not, without reasonable excuse—

(a) refuse or fail to take an oath or make an affirmation when required to do so; or

(b) refuse or fail to answer a question that the person is required to answer by the Royal Commission.


Note

See also section 72 of the Criminal Procedure Act 2009, which deals with the evidential burden of proof.

(2) A person does not commit an offence against subsection (1) unless, before the person is required to take the oath or make the affirmation or answer the question, the Royal Commission informs the person that refusal or failure to do so without reasonable excuse is an offence.

48 Offence to contravene exclusion or restriction orders

(1) A person must not engage in conduct that constitutes a contravention of an order of a commissioner under section 24(1) or 26(1) that is in force if the person—

(a) knows that the order is in force; or

(b) is reckless as to whether the order is in force.


Note


(2) An offence against subsection (1) is an indictable offence.



37

49 Offence to hinder, obstruct or cause serious disruption to proceeding

A person must not engage in conduct that hinders, obstructs or causes serious disruption to a proceeding of a Royal Commission if the person—

(a) intends to hinder, obstruct or disrupt the proceeding; or

(b) is reckless as to whether the conduct may hinder, obstruct or disrupt the proceeding.


50 Offence to make false or misleading statements or produce false or misleading documents or other things

(1) A person must not make a statement to a Royal Commission that the person knows to be false or misleading in a material particular.


Note

See section 314 of the Crimes Act 1958 in relation to perjury and section 254 of that Act in relation to the destruction of evidence.

(2) A person must not produce a document or other thing to a Royal Commission that the person knows to be false or misleading in a material particular unless the person indicates to the Royal Commission the respect in which it is false or misleading and, to the extent practicable, provides the correct information.



38


51 Offence for employers to take detrimental action against employees

(1) An employer must not dismiss or threaten to dismiss an employee or take or threaten to take any other detrimental action against an employee because—

(a) the employee has given information to a Royal Commission; or

(b) the employer believes that the employee has given or will give information to a Royal Commission.


Notes


2 Section 128 applies to an offence against this subsection.

(2) It is a defence in a proceeding for an offence against subsection (1) if the reason referred to in subsection (1)(a) or (b) was not a substantial reason for the dismissal or other detrimental action.

(3) Subsection (1) does not apply if an employer dismisses or threatens to dismiss an employee or takes or threatens to take any other detrimental action against an employee because—

(a) the employee unlawfully gave information to a Royal Commission; or

(b) the employee contravened section 50 of this Act or section 314 of the Crimes Act 1958



39

in respect of the information given to a Royal Commission.

52 Offence of taking detrimental action against commissioners

(1) A person must not take detrimental action against another person who is or was a commissioner because the other person is or was a commissioner.

Penalty:240 penalty units or imprisonment for 2 years.

Note


(2) It is a defence in a proceeding for an offence against subsection (1) if the reason referred to in that subsection was not a substantial reason for the detrimental action.

__________________



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PART 3—BOARDS OF INQUIRY

Division 1—Establishment of Boards of Inquiry

53 Establishment of Board of Inquiry by Order in Council

(1) On the recommendation of the Premier, the Governor in Council, by Order in Council published in the Government Gazette, may appoint any one or more natural persons to constitute a Board of Inquiry to inquire into and report on the terms of reference specified in the Order.

(2) The establishing Order—


(i) the person or persons appointed to constitute the Board of Inquiry;

(ii) if more than one person is appointed, the person who is to chair the Board of Inquiry;

(iii) the terms of reference of the Board of Inquiry;


(i) a time by which the Board of Inquiry is to report on its inquiry;

(ii) whether the members may perform functions conferred on them under the law of the Commonwealth, another State or a Territory;

(iii) whether the Board of Inquiry is authorised to incur expenses and financial obligations to be met from the Consolidated Fund and, if so, the



41

maximum amount of those expenses and obligations;

(iv) whether the chairperson is authorised to engage one or more Australian legal practitioners to assist the Board of Inquiry as counsel;

(v) the manner in which the inquiry of the Board of Inquiry is to be conducted;

(vi) if there is more than one member, which (if any) of the functions of the Board of Inquiry must be performed by the members jointly and which (if any) may be performed by one or more members separately;

(vii) any other matter the Governor in Council considers appropriate.

Note

See section 123 for restrictions on the scope and powers of a Board of Inquiry in relation to certain entities.

(3) Nothing in this Act affects the establishment of a board of inquiry, or applies to a board of inquiry established, under another Act.Example

Section 15 of the Parliamentary Administration Act 2005 provides for the establishment of boards of inquiry under that Act.

54 Concurrent Boards of Inquiry

If provided for in the establishing Order for a Board of Inquiry, a member may perform any functions that are conferred on the member under the law of the Commonwealth, another State or a Territory in conjunction with the performance of the member's functions under this Act.



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55 Conversion of Board of Inquiry into a Royal Commission

(1) The Governor, by letters patent issued in accordance with section 5 to the members of a Board of Inquiry, may convert the Board of Inquiry into a Royal Commission.

(2) If a Board of Inquiry is converted into a Royal Commission—

(a) the members of the Board of Inquiry become commissioners; and

(b) any members of staff of the Board of Inquiry become members of staff of the Royal Commission; and

(c) any information or evidence given to or obtained by, and any documents and other things produced to, the Board of Inquiry are taken to have been given to, obtained by or produced to the Royal Commission; and

(d) any notices to attend or notices to produce served by the Board of Inquiry that are still in force are taken to be notices to attend or notices to produce served by the Royal Commission; and

(e) any arrangements or agreements entered into by or on behalf of the Board of Inquiry that are in force continue in force as if they had been entered into by or on behalf of the Royal Commission.

(3) Subsection (2) is subject to the letters patent referred to in subsection (1).

(4) The conversion of a Board of Inquiry into a Royal Commission takes effect on the day on which the letters patent are published in the Government Gazette under section 6.



43

Division 2—Arrangements to facilitate Boards of Inquiry


(1) There may be employed under Part 3 of the Public Administration Act 2004 any employees that are necessary for a Board of Inquiry to perform its functions.Note

See also section 18 of the Public Administration Act 2004, which provides for delegation powers of a public service body Head under that Act. That section would permit employment functions under that Act to be delegated to the chairperson of a Board of Inquiry.

(2) The chairperson of a Board of Inquiry may—



(c) if authorised to do so by the establishing Order for the Board of Inquiry, engage one or more Australian legal practitioners to assist the Board of Inquiry as counsel; and

(d) enter into agreements or arrangements for the provision of any other services to the Board of Inquiry.

(3) The engagement of an Australian legal practitioner under subsection (2)(c) may only be made with the approval of the Premier.

(4) The employment or engagement of members of staff of a Board of Inquiry may be on any terms and conditions the chairperson considers appropriate and all members of staff are subject to the direction of the chairperson.



44

(5) The chairperson of a Board of Inquiry may, by instrument, delegate to another Board of Inquiry officer a function under this section, other than this power of delegation.Note


57 Certain public sector values do not apply to Board of Inquiry staff

If the public sector values referred to in section 7(1)(a)(i) and (c)(iii) of the Public Administration Act 2004 would, but for this section, apply to a member of staff of a Board of Inquiry, those public sector values do not apply to the member of staff in respect of their employment or engagement with the Board of Inquiry.Note


58 Expenses and financial obligations of Board of Inquiry

(1) Expenses and financial obligations may be incurred by a Board of Inquiry to be met from the Consolidated Fund only—

(a) if authorised by the establishing Order for the Board of Inquiry; and

(b) to the extent of the maximum amount specified in the establishing Order.

(2) The Consolidated Fund is appropriated to the extent necessary to allow expenses and financial obligations to be incurred and met as authorised by subsection (1).



45

(3) To avoid doubt, subsection (1) does not prevent—

(a) the entering into of agreements or arrangements, or the engagement of persons, under section 56 at no cost to the Board of Inquiry; or

(b) the incurring of expenses and financial obligations to be met from sources other than the Consolidated Fund.

Division 3—Conduct of inquiries by Boards of Inquiry

59 Manner of inquiry of Board of Inquiry

A Board of Inquiry may conduct its inquiry in any manner that it considers appropriate, subject to—


(b) the establishing Order for the Board of Inquiry; and


60 Members may act separately

(1) This section applies if a Board of Inquiry is constituted by more than one member.

(2) Subject to this Act and the establishing Order, the chairperson of the Board of Inquiry may determine from time to time that any of the functions of the Board of Inquiry may be performed by one or more members separately.Example

Subject to the establishing Order, the chairperson could determine that the individual members hold concurrent hearings.

61 Evidence

A Board of Inquiry is not bound by the rules of evidence or any practices or procedures applicable to courts of record and may inform itself on any matter as it sees fit.



46

62 Participation in Board of Inquiry inquiries

(1) A Board of Inquiry may allow, to the extent and in the manner determined by the Board of Inquiry—



(2) In allowing a person to appear or participate in an inquiry, or to be legally represented, the Board of Inquiry may have regard to the following factors—


(b) the likelihood that the Board of Inquiry may make an adverse finding against the person;

(c) the ability of the person to assist the Board of Inquiry in the inquiry;


(e) any other matter the Board of Inquiry considers relevant.


(1) A Board of Inquiry may from time to time issue practice directions, statements or notes in relation to its inquiry.

(2) Practice directions, statements or notes issued under subsection (1) must not be inconsistent with the establishing Order, this or any other Act or any regulations made under this or any other Act.




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Division 4—Powers of Boards of Inquiry for production of documents and other things and obtaining evidence

64 Power to compel production of documents and other things or attendance of witness

(1) For the purposes of its inquiry, a Board of Inquiry may serve written notice on a person requiring the person to—

(a) produce a specified document or other thing to the Board of Inquiry or a Board of Inquiry officer before a specified time and in the specified manner; or

(b) attend the Board of Inquiry at a specified time and place to produce a specified document or other thing; or

(c) attend the Board of Inquiry at a specified time and place, and from then on from day to day until excused, to give evidence; or

(d) attend the Board of Inquiry at a specified time and place, and from then on from day to day until excused, to give evidence and to produce a specified document or other thing.

(2) A notice to produce or notice to attend in relation to a Board of Inquiry—

(a) must be in the prescribed form (if any); and

(b) must contain the following information—

(i) a statement outlining the provisions of sections 70 and 86;

(ii) examples of what may constitute a reasonable excuse for failing to comply with the notice;

(iii) how the person may object to the notice;

(iv) any other prescribed information; and



48

(c) must be served in accordance with section 66.

(3) Subsection (2)(a) does not apply to a notice to produce or notice to attend for the purposes of an inquiry of a Board of Inquiry that is being conducted concurrently under this Act and under the law of the Commonwealth, another State or a Territory.

65 Variation or revocation of notice to produce or notice to attend

(1) A person on whom a notice to produce or notice to attend in relation to a Board of Inquiry is served may make a claim to the Board of Inquiry—

(a) that the person has or will have a reasonable excuse for failing to comply with the notice; or

(b) in the case of a notice to produce, or a notice to attend under section 64(1)(b) or (d), that a document or other thing specified in the notice is not relevant to the subject matter of the inquiry.

(2) Without limiting what may be a reasonable excuse for the purposes of subsection (1)(a), it is a reasonable excuse for a person to fail to comply with a notice by refusing to give information to a Board of Inquiry if the information—

(a) in the case of a natural person, might tend to incriminate the person or make the person liable to a penalty; or

(b) is the subject of parliamentary privilege; or

(c) is the subject of legal professional privilege; or

(d) is the subject of public interest immunity; or



49

(e) is prohibited from disclosure by a court order; or

(f) is prohibited from disclosure by a provision of another enactment that specifically applies to the giving of information or the production of documents or other things to a Board of Inquiry; or

(g) is prohibited from disclosure by a provision of another enactment that is prescribed by the regulations for the purposes of section 74.

(3) If the Board of Inquiry is satisfied that the person's claim is made out, the Board of Inquiry, by further written notice served on the person, may vary or revoke the notice.

(4) A Board of Inquiry, by further written notice served on a person, may at any time on its own initiative vary or revoke a notice to produce or notice to attend served on the person.

(5) A notice varying or revoking a notice to produce or notice to attend must be served in accordance with section 66.

66 Service of notice to produce or notice to attend




50

(2) A Board of Inquiry may serve a notice to attend requiring immediate attendance by a person if—

(a) the Board of Inquiry considers on reasonable grounds that a delay in the person's attendance is likely to result in—







(4) A notice to produce or notice to attend directed to a body corporate must be served by leaving a copy of the notice at the registered office or principal place of business of the body corporate with a person apparently employed at that office or place and who is apparently at least 18 years of age.


67 Witness already in custody

(1) If a notice to attend a Board of Inquiry is issued to a person who is in a prison or a police gaol, the Board of Inquiry may give a written direction that the person be brought before the Board of Inquiry as required by the notice to attend.

(2) A direction under subsection (1) must be in the prescribed form (if any).



51

68 Power to take evidence on oath or affirmation

(1) A Board of Inquiry may require a person attending an inquiry of the Board of Inquiry, whether in accordance with a notice to attend or otherwise, to give evidence or answer questions on oath or affirmation.

(2) A member of the Board of Inquiry, or a member of staff who is authorised to do so by a member of the Board of Inquiry, may administer an oath or affirmation to a person for the purposes of subsection (1).

69 Powers in relation to documents and other things

(1) A member of a Board of Inquiry, or a member of staff who is authorised by a member of a Board of Inquiry, may—

(a) inspect any document or other thing produced to the Board of Inquiry; and

(b) retain the document or other thing for as long as is reasonably necessary for the purposes of the inquiry; and

(c) copy any document or other thing produced to the Board of Inquiry necessary for the purposes of the inquiry.

(2) If the retention of a document or other thing under subsection (1) ceases to be reasonably necessary for the purposes of its inquiry, the Board of Inquiry, at the request of a person who appears to be entitled to the document or other thing, must cause the document or other thing to be delivered to the person unless it has been given to another person or body under section 84.



52

(3) A reference in this section to the purposes of an inquiry includes a reference to—

(a) the disclosure of information under section 84; and

(b) any concurrent Boards of Inquiry.

70 Failure to comply with notice or requirement

(1) If the chairperson of a Board of Inquiry is satisfied that a person has, without reasonable excuse, failed to comply with a notice to produce or notice to attend in relation to the Board of Inquiry or a requirement under section 68, the chairperson may apply to the Supreme Court for an order under this section.

(2) On an application under subsection (1), the Supreme Court may order the person to comply with the notice or requirement within the period specified by the Court.

Note



71 Access to Board of Inquiry proceedings

(1) A member of a Board of Inquiry may make an order excluding any person from a proceeding of the Board of Inquiry if—






53


(e) the member otherwise considers the exclusion appropriate.

(2) The Board of Inquiry must cause a copy of the order to be posted—





A Board of Inquiry may expel a person from a proceeding of the Board of Inquiry if the person disrupts the proceeding.

73 Restriction on publication of information relating to Board of Inquiry inquiries

(1) Subject to subsection (2), a member of a Board of Inquiry may make an order prohibiting or restricting the publication of—

(a) any information that may enable the identity of a person who has given, or is to give, information or evidence to the Board of Inquiry for the purposes of an inquiry to be ascertained; or

(b) any information or evidence given to the Board of Inquiry for the purposes of an inquiry.



54

(2) A member may make an order prohibiting or restricting the publication of information or evidence if—





(e) the member otherwise considers the prohibition or restriction appropriate.

(3) If the order is made during a proceeding, the Board of Inquiry must cause a copy of the order to be posted—



(4) If the order is made in relation to information that is given by the Board of Inquiry to another person, the Board of Inquiry must cause a copy of the order to be given to that person.




55

Division 6—Application of statutory secrecy to Boards of Inquiry

74 Statutory secrecy and confidentiality provisions

(1) A Board of Inquiry may require a person to give information (including answering a question) or to produce a document or other thing despite the provision of another enactment that prohibits the disclosure of the information, document or other thing or imposes any other duty of confidentiality on the person in relation to the information, document or other thing.

(2) If the Board of Inquiry specifies that subsection (1) applies to its requirement—

(a) it is not a reasonable excuse for the person to refuse or fail to comply with the requirement that another enactment prohibits the person from giving the information or producing the document or other thing to the Board of Inquiry or imposes a duty of confidentiality on the person in relation to the information, document or other thing; and

(b) the person is not subject to any criminal, civil, administrative or disciplinary proceedings or action only because the person complies with the requirement.

(3) Subsections (1) and (2) do not apply to—

(a) a provision of another enactment that specifically applies to the giving of information or the production of documents or other things to a Board of Inquiry; or

(b) a provision of another enactment that is prescribed by the regulations for the purposes of this section.



56

(4) If a Board of Inquiry receives information or a document or other thing referred to in this section in an inquiry, any provision of another enactment that prohibits the disclosure of the information, document or other thing or imposes any other duty of confidentiality in relation to the information, document or other thing does not apply to the Board of Inquiry.

Division 7—Reports of Boards of Inquiry

75 Report of Board of Inquiry

(1) A Board of Inquiry must deliver a report of its inquiry to the Governor.

(2) A report may contain any recommendations the Board of Inquiry considers appropriate.


(a) within the time specified in the establishing Order for the Board of Inquiry; or

(b) if no time is so specified, as soon as practicable after the Board of Inquiry completes the inquiry.

76 Adverse findings

(1) If a Board of Inquiry proposes to make a finding that is adverse to a person, the Board of Inquiry must be satisfied that the person—



(2) A Board of Inquiry must consider a person's response under subsection (1)(b) (if any) before making a finding that is adverse to the person.



57

(3) If the Board of Inquiry includes a finding that is adverse to a person in its report, the Board of Inquiry must fairly set out the person's response under subsection (1)(b) (if any) in the report.

77 Tabling of Board of Inquiry report

(1) Within 30 days after the Governor receives the report of a Board of Inquiry, the Premier must cause the following material (the Board of Inquiry material) to be laid before each House of Parliament or, if neither House is then sitting, to be given to the clerk of each House—

(a) a copy of the report; or

(b) a copy of part of the report, together with a statement that the remaining part of the report is not to be tabled in Parliament at this time, including the reasons why it is not to be tabled; or

(c) a statement that the report has been received but is not to be tabled in Parliament at this time, including the reasons why it is not to be tabled.

(2) If the Premier proposes to give the Board of Inquiry material to the clerk of each House, the Premier must—

(a) give at least one business day's notice of the Premier's intention to do so to the clerk of each House; and

(b) give the Board of Inquiry material to the clerk of each House on the day indicated in the notice.





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(b) make available copies of the Board of Inquiry material for each member of the House as soon as practicable after the Board of Inquiry material is received under subsection (2)(b); and

(c) cause the Board of Inquiry material to be laid before the House on the next sitting day of the House.

(4) Board of Inquiry material that is given to the clerks under subsection (2)(b) is taken to have been published by order, or under the authority, of the Houses of Parliament.

(5) The publication of Board of Inquiry material in accordance with this section is absolutely privileged and the provisions of sections 73 and 74 of the Constitution Act 1975 and of any other enactment or rule of law relating to the publication of the proceedings of Parliament apply to and in relation to the publication of the Board of Inquiry material as if it were a report to which those sections applied and had been published by the Government Printer under the authority of Parliament.

(6) If the report of a Board of Inquiry is not tabled, or is tabled in part, under this section and the Premier subsequently determines that the report, or a further part or parts of the report, should be tabled, this section applies, with any necessary modifications, to the tabling and publication of the report or the relevant part or parts of the report.


78 Compellability of members

(1) A person who is or was a member of a Board of Inquiry is not compellable to give evidence in



59

relation to the Board of Inquiry in any criminal, civil, administrative or disciplinary proceedings.

(2) Nothing in subsection (1) prevents a person who is or was a member of a Board of Inquiry giving evidence voluntarily.


(1) A member of a Board of Inquiry has, in respect of the performance of the member's functions as member, the same protection and immunity as a judge of the Supreme Court has in the performance of the judge's duties as judge.

(2) A member of staff of a Board of Inquiry has, in the performance of the person's functions in the Board of Inquiry's inquiry, the same protection and immunity as a judge of the Supreme Court has in the performance of the judge's duties as judge.

(3) A person legally representing another person in a Board of Inquiry's inquiry has the same protection and immunity as an Australian legal practitioner has in representing a party in proceedings in the Supreme Court.

(4) A person who gives information or evidence, or produces a document or other thing, to a Board of Inquiry has the same protection and immunity as a witness has in proceedings in the Supreme Court.

Division 9—Boards of Inquiry and courts


(1) Any answer, information, document or other thing given or produced to a Board of Inquiry by a person and the fact that an answer, information, document or other thing was given or produced, is not admissible in evidence, or otherwise able to be used, against the person in any other proceedings, except in proceedings for—



60


(b) an offence against section 254 or 314 of the Crimes Act 1958 in relation to the Board of Inquiry.

(2) Subsection (1) does not apply to a document or other thing if it was obtained, or could have been obtained, independently of its production to the Board of Inquiry, either before or after its production, by the person seeking to tender it in evidence, or otherwise to use it, in the other proceedings.


other proceedings means criminal, civil or administrative proceedings before a court, tribunal or person acting judicially or disciplinary proceedings, including proceedings that were pending when the answer, information, document or other thing was given or produced to the Board of Inquiry.


(1) The chairperson of a Board of Inquiry may refer any question of law arising in an inquiry to the Supreme Court for decision.



82 Costs of attending Board of Inquiry

(1) This section applies to a person who attends a Board of Inquiry—

(a) in accordance with a notice to attend; or

(b) at the request of the Board of Inquiry.



61

(2) Subject to subsection (3), the person is entitled to be paid expenses and allowances in accordance with the prescribed scale.

(3) Subsection (2) does not apply—

(a) in an inquiry that is being conducted concurrently under this Act and under the law of the Commonwealth, another State or a Territory, unless the establishing Order for the Board of Inquiry provides otherwise; or

(b) if the establishing Order does not authorise the Board of Inquiry to incur expenses or financial obligations to be met from the Consolidated Fund.


83 Confidentiality for Board of Inquiry officers

A person who is or was a Board of Inquiry officer must not knowingly disclose any information acquired by the person by reason of being a Board of Inquiry officer, or in the course of the performance of functions under this Act or any other Act, except—

(a) for the performance of the functions of the Board of Inquiry officer under this or any other Act; or

(b) for the purpose of any criminal proceedings under section 254 or 314 of the Crimes Act 1958 in relation to the Board of Inquiry; or




62



Note


84 Disclosure or provision of information by members or authorised persons

(1) A member of a Board of Inquiry or a person authorised by a member may at any time provide or disclose any information referred to in section 83, or give any document or other thing, to any person or body if the member or authorised person—

(a) considers that the information, document or other thing is relevant to the performance of the functions of the person or body; and


(2) If a document or other thing is given to a person or body under subsection (1), the person or body must, at the request of a Board of Inquiry officer, return the document or other thing if it ceases to be reasonably necessary for the person or body to retain the document or other thing for the purposes for which it was given to the person or body.


(1) This section applies to a person to whom information is given by a Board of Inquiry or a Board of Inquiry officer during the course of the Board of Inquiry's inquiry.



63



Note




86 Offence to fail to comply with a notice to produce or attend

A person who is duly served with a notice to produce or notice to attend in relation to a Board of Inquiry must not, without reasonable excuse, refuse or fail to comply with the notice.


Notes

1 See Division 6 in relation to statutory secrecy and confidentiality provisions.


3 Section 128 applies to an offence against this section.



64

87 Offence to fail to take oath, make affirmation or answer question

(1) A person who is duly served with a notice to attend a Board of Inquiry under section 64(1)(c) or (d) must not, without reasonable excuse—


(b) refuse or fail to answer a question that the person is required to answer by the Board of Inquiry.


Note


(2) A person does not commit an offence against subsection (1) unless, before the person is required to take the oath or make the affirmation or answer the question, the Board of Inquiry informs the person that refusal or failure to do so without reasonable excuse is an offence.


(1) A person must not engage in conduct that constitutes a contravention of an order of a member of a Board of Inquiry under section 71(1) or 73(1) that is in force if the person—




Note




65



A person must not engage in conduct that hinders, obstructs or causes serious disruption to a proceeding of a Board of Inquiry if the person—





(1) A person must not make a statement to a Board of Inquiry that the person knows to be false or misleading in a material particular.


Note

See section 314 of the Crimes Act 1958 in relation to perjury and section 254 of that Act in relation to the destruction of evidence.

(2) A person must not produce a document or other thing to a Board of Inquiry that the person knows to be false or misleading in a material particular unless the person indicates to the Board of Inquiry the respect in which it is false or misleading and, to the extent practicable, provides the correct information.




66



(a) the employee has given information to a Board of Inquiry; or

(b) the employer believes that the employee has given or will give information to a Board of Inquiry.


Notes



(2) It is a defence in a proceeding for an offence against subsection (1) if the reason referred to in subsection (1)(a) or (b) was not a substantial reason for the dismissal or other detrimental action.


(a) the employee unlawfully gave information to a Board of Inquiry; or

(b) the employee contravened section 90 of this Act or section 314 of the Crimes Act 1958 in respect of the information given to a Board of Inquiry.



67

92 Offence of taking detrimental action against members

(1) A person must not take detrimental action against another person who is or was a member of a Board of Inquiry because the other person is or was a member of a Board of Inquiry.


Note



__________________



68

PART 4—FORMAL REVIEWS

Division 1—Establishment of Formal Reviews

93 Establishment of Formal Review by instrument

(1) The Premier, by instrument, may appoint any one or more natural persons to constitute a Formal Review to inquire into and report on the terms of reference specified in the instrument.

(2) A Minister other than the Premier may, with the Premier's approval, by instrument appoint any one or more natural persons to constitute a Formal Review to inquire into and report on the terms of reference specified in the instrument.

(3) The establishing instrument for a Formal Review—


(i) the person or persons appointed to constitute the Formal Review;

(ii) if more than one person is appointed, the person who is to chair the Formal Review;

(iii) the terms of reference of the Formal Review; and


(i) a time by which the Formal Review is to report on its inquiry;

(ii) whether the Formal Review is authorised to incur expenses and financial obligations and, if so, the maximum amount of those expenses and obligations;

(iii) the manner in which the inquiry of the Formal Review is to be conducted;



69

(iv) if there is more than one member, which (if any) of the functions of the Formal Review must be performed by the members jointly and which (if any) may be performed by one or more members separately;

(v) whether persons who attend the Formal Review at the request of the Formal Review are entitled to be paid expenses and allowances;

(vi) any other matter the Premier or other Minister making the instrument considers appropriate.

94 Conversion of Formal Review into a Board of Inquiry

(1) The Governor in Council, by Order published in the Government Gazette in accordance with section 53, may convert a Formal Review into a Board of Inquiry.

(2) If a Formal Review is converted into a Board of Inquiry—

(a) the members of the Formal Review become members of the Board of Inquiry; and

(b) any members of staff of the Formal Review become members of staff of the Board of Inquiry; and

(c) any information or evidence given to or obtained by, and any documents and other things produced to, the Formal Review are taken to have been given to, obtained by or produced to the Board of Inquiry; and

(d) any arrangements or agreements entered into by or on behalf of the Formal Review that are in force continue in force as if they had

S. 93(3)(b)(v) substituted by No. 10/2015 s. 13.



70

been entered into by or on behalf of the Board of Inquiry.

(3) Subsection (2) is subject to the establishing Order for the Board of Inquiry.

(4) The conversion of a Formal Review into a Board of Inquiry takes effect on the day on which the establishing Order is published in the Government Gazette under section 53.

95 Conversion of Formal Review into a Royal Commission

(1) The Governor, by letters patent issued in accordance with section 5 to the members of a Formal Review, may convert the Formal Review into a Royal Commission.

(2) If a Formal Review is converted into a Royal Commission—

(a) the members of the Formal Review become commissioners; and

(b) any members of staff of the Formal Review become members of staff of the Royal Commission; and

(c) any information or evidence given to or obtained by, and any documents and other things produced to, the Formal Review are taken to have been given to, obtained by or produced to the Royal Commission; and

(d) any arrangements or agreements entered into by or on behalf of the Formal Review that are in force continue in force as if they had been entered into by or on behalf of the Royal Commission.

(3) Subsection (2) is subject to the letters patent referred to in subsection (1).



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(4) The conversion of a Formal Review into a Royal Commission takes effect on the day on which the letters patent are published in the Government Gazette under section 6.

Division 2—Arrangements to facilitate Formal Reviews


(1) There may be employed under Part 3 of the Public Administration Act 2004 any employees that are necessary for a Formal Review to perform its functions.Note

See also section 18 of the Public Administration Act 2004, which provides for delegation powers of a public service body Head under that Act. That section would permit employment functions under that Act to be delegated to the chairperson of a Formal Review.

(2) The chairperson of a Formal Review may—



(c) enter into agreements or arrangements for the provision of any other services to the Formal Review.

(3) The employment or engagement of members of staff of a Formal Review may be on any terms and conditions the chairperson considers appropriate and all members of staff are subject to the direction of the chairperson.



72

(4) The chairperson of a Formal Review may, by instrument, delegate to another Formal Review officer a function under this section, other than this power of delegation.Note


97 Certain public sector values do not apply to Formal Review staff

If the public sector values referred to in section 7(1)(a)(i) and (c)(iii) of the Public Administration Act 2004 would, but for this section, apply to a member of staff of a Formal Review, those public sector values do not apply to the member of staff in respect of their employment or engagement with the Formal Review.Note


98 Expenses and financial obligations of Formal Review

(1) Expenses and financial obligations may be incurred by a Formal Review only—

(a) if authorised by the establishing instrument for the Formal Review; and

(b) to the extent of the maximum amount specified in the establishing instrument.

(2) To avoid doubt, subsection (1) does not prevent the entering into of agreements or arrangements, or the engagement of persons, under section 96 at no cost to the Formal Review.



73

Division 3—Conduct of Formal Review inquiries

99 Manner of inquiry of Formal Review

A Formal Review may conduct its inquiry in any manner that it considers appropriate, subject to—


(b) the establishing instrument for the Formal Review; and


100 Members may act separately

(1) This section applies if a Formal Review is constituted by more than one member.

(2) Subject to this Act and the establishing instrument for the Formal Review, the chairperson of the Formal Review may determine from time to time that any of the functions of the Formal Review may be performed by one or more members separately.Example

Subject to the establishing instrument, the chairperson could determine that the individual members hold concurrent hearings.

101 Evidence

A Formal Review is not bound by the rules of evidence or any practices or procedures applicable to courts of record and may inform itself on any matter as it sees fit.

102 Participation in Formal Review inquiries

(1) A Formal Review may allow, to the extent and in the manner determined by the Formal Review—





74

(2) In allowing a person to appear or participate in an inquiry, or to be legally represented, the Formal Review may have regard to the following factors—


(b) the likelihood that the Formal Review may make an adverse finding against the person;

(c) the ability of the person to assist the Formal Review in the inquiry;


(e) any other matter the Formal Review considers relevant.


(1) A Formal Review may from time to time issue practice directions, statements or notes in relation to its inquiry.

(2) Practice directions, statements or notes issued under subsection (1) must not be inconsistent with the establishing instrument, this or any other Act or any regulations made under this or any other Act.



104 Access to Formal Review proceedings

(1) A member of a Formal Review may make an order excluding any person from a proceeding of the Formal Review if—



75





(e) the member otherwise considers the exclusion appropriate.

(2) The Formal Review must cause a copy of the order to be posted—





A Formal Review may expel a person from a proceeding of the Formal Review if the person disrupts the proceeding.

106 Restriction on publication of information relating to Formal Review inquiries

(1) Subject to subsection (2), a member of a Formal Review may make an order prohibiting or restricting the publication of—



76

(a) any information that may enable the identity of a person who has given, or is to give, information to the Formal Review for the purposes of an inquiry to be ascertained; or

(b) any information given to the Formal Review for the purposes of an inquiry.

(2) A member may make an order prohibiting or restricting the publication of information or evidence if—





(e) the member otherwise considers the prohibition or restriction appropriate.

(3) If the order is made during a proceeding, the Formal Review must cause a copy of the order to be posted—



(4) If the order is made in relation to information that is given by the Formal Review to another person, the Formal Review must cause a copy of the order to be given to that person.



77


Division 5—Reports of Formal Reviews

107 Report of Formal Review

(1) A Formal Review must deliver a report of its inquiry—

(a) to the Premier; and

(b) if the Formal Review was established by a Minister other than the Premier, to that Minister.

(2) A report may contain any recommendations the Formal Review considers appropriate.


(a) within the time specified in the establishing instrument for the Formal Review; or

(b) if no time is so specified, as soon as practicable after the Formal Review completes the inquiry.

108 Adverse findings

(1) If a Formal Review proposes to make a finding that is adverse to a person, the Formal Review must be satisfied that the person—



(2) A Formal Review must consider a person's response under subsection (1)(b) (if any) before making a finding that is adverse to the person.



78

(3) If the Formal Review includes a finding that is adverse to a person in its report, the Formal Review must fairly set out the person's response under subsection (1)(b) (if any) in the report.

109 Tabling of Formal Review report

(1) The relevant Minister may cause a copy of the report of a Formal Review to be laid before each House of Parliament or, if neither House is sitting, to be given to the clerk of each House.

(2) If the relevant Minister proposes to give the report to the clerk of each House, the relevant Minister must—

(a) give at least one business day's notice of the relevant Minister's intention to do so to the clerk of each House; and

(b) give a copy of the report to the clerk of each House on the day indicated in the notice.



(b) make available copies of the report for each member of the House as soon as practicable after the report is received under subsection (2)(b); and

(c) cause the report to be laid before the House on the next sitting day of the House.

(4) A copy of a report that is given to the clerks under subsection (2)(b) is taken to have been published by order, or under the authority, of the Houses of Parliament.



79

(5) The publication of a copy of a report in accordance with this section is absolutely privileged and the provisions of sections 73 and 74 of the Constitution Act 1975 and of any other enactment or rule of law relating to the publication of the proceedings of Parliament apply to and in relation to the publication of the copy of the report as if it were a report to which those sections applied and had been published by the Government Printer under the authority of Parliament.


relevant Minister means—

(a) for a Formal Review referred to in section 93(1), the Premier;

(b) for a Formal Review referred to in section 93(2), the Minister who established the Formal Review.


110 Compellability of members

(1) A person who is or was a member of a Formal Review is not compellable to give evidence in relation to the Formal Review in any criminal, civil, administrative or disciplinary proceedings.

(2) Nothing in subsection (1) prevents a person who is or was a member of a Formal Review giving evidence voluntarily.


(1) A member of a Formal Review has, in respect of the performance of the member's functions as member, the same protection and immunity as a judge of the Supreme Court has in the performance of the judge's duties as judge.



80

(2) A member of staff of a Formal Review has, in the performance of the person's functions in the Formal Review's inquiry, the same protection and immunity as a judge of the Supreme Court has in the performance of the judge's duties as judge.

(3) A person legally representing another person in a Formal Review's inquiry has the same protection and immunity as an Australian legal practitioner has in representing a party in proceedings in the Supreme Court.

(4) A person who gives information or evidence to a Formal Review has the same protection and immunity as a witness has in proceedings in the Supreme Court.

Division 7—Formal Reviews and courts


(1) Any answer, information, document or other thing given or produced to a Formal Review by a person and the fact that an answer, information, document or other thing was given or produced, is not admissible in evidence, or otherwise able to be used, against the person in any other proceedings, except in proceedings for—


(b) an offence against section 254 of the Crimes Act 1958 in relation to the Formal Review.

(2) Subsection (1) does not apply to a document or other thing if it was obtained, or could have been obtained, independently of its production to the Formal Review, either before or after its production, by the person seeking to tender it in evidence, or otherwise to use it, in the other proceedings.



81


other proceedings means criminal, civil or administrative proceedings before a court, tribunal or person acting judicially or disciplinary proceedings, including proceedings that were pending when the answer, information, document or other thing was given or produced to the Formal Review.


(1) The chairperson of a Formal Review may refer any question of law arising in an inquiry to the Supreme Court for decision.



114 Costs of attending Formal Review

(1) This section applies to a person who attends a Formal Review at the request of the Formal Review if the establishing instrument for the Formal Review—

(a) provides that persons who attend the Formal Review at the request of the Formal Review are entitled to be paid expenses and allowances; and

(b) authorises the Formal Review to incur expenses and financial obligations.

(2) The person is entitled to be paid expenses and allowances in accordance with the prescribed scale.

S. 114 substituted by No. 10/2015 s. 14.



82


115 Confidentiality for Formal Review officers

A person who is or was a Formal Review officer must not knowingly disclose any information acquired by the person by reason of being a Formal Review officer, or in the course of the performance of functions under this Act or any other Act, except—

(a) for the performance of the functions of the Formal Review officer under this or any other Act; or

(b) for the purpose of any criminal proceedings under section 254 of the Crimes Act 1958 in relation to the Formal Review; or




Note


116 Disclosure or provision of information by members or authorised persons

(1) A member of a Formal Review or a person authorised by a member may at any time provide or disclose any information referred to in section 115, or give any document or other thing, to any person or body if the member or authorised person—

(a) considers that the information, document or other thing is relevant to the performance of



83

the functions of the person or body; and


(2) If a document or other thing is given to a person or body under subsection (1), the person or body must, at the request of a Formal Review officer, return the document or other thing if it ceases to be reasonably necessary for the person or body to retain the document or other thing for the purposes for which it was given to the person or body.


(1) This section applies to a person to whom information is given by a Formal Review or a Formal Review officer during the course of the Formal Review's inquiry.



Note






84


(1) A person must not engage in conduct that constitutes a contravention of an order of a member of a Formal Review under section 104(1) or 106(1) that is in force if the person—




Note




A person must not engage in conduct that hinders, obstructs or causes serious disruption to a proceeding of a Formal Review if the person—







85

(1) A person must not make a statement to a Formal Review that the person knows to be false or misleading in a material particular.


(2) A person must not produce a document or other thing to a Formal Review that the person knows to be false or misleading in a material particular unless the person indicates to the Formal Review the respect in which it is false or misleading and, to the extent practicable, provides the correct information.




(a) the employee has given information to a Formal Review; or

(b) the employer believes that the employee has given or will give information to a Formal Review.


Notes



(2) It is a defence in a proceeding for an offence against subsection (1) if the reason referred to in



86

subsection (1)(a) or (b) was not a substantial reason for the dismissal or other detrimental action.


(a) the employee unlawfully gave information to a Formal Review; or

(b) the employee contravened section 120 in respect of the information given to a Formal Review.

122 Offence of taking detrimental action against members

(1) A person must not take detrimental action against another person who is or was a member of a Formal Review because the other person is or was a member of a Formal Review.


Note



__________________



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PART 5—GENERAL

Division 1—General provisions for inquiries

123 Powers of Royal Commissions and Boards of Inquiry

(1) A Royal Commission or Board of Inquiry cannot inquire into or exercise any powers in relation to any of the following persons or bodies—

(a) the Auditor-General;

(b) the Ombudsman;

(c) the Electoral Commissioner;

(d) the IBAC;

(e) the Victorian Inspectorate;

(f) the Director of Public Prosecutions for Victoria;

(g) a Crown Prosecutor;

(h) a Victorian court;

(i) VCAT;

(j) a judicial officer;

(k) a non-judicial member of VCAT;

(l) a member of the staff of Court Services Victoria in relation to the performance of judicial or quasi-judicial functions of a Victorian court.

(2) To avoid doubt, it is not the intention of this Act to alter or vary section 94B, 94E or 94F of the Constitution Act 1975.

(3) Nothing in this section prevents a person or body referred to in subsection (1) from giving evidence or information, or producing a document or other



88

thing, voluntarily to a Royal Commission or Board of Inquiry.

124 Transfer of records

(1) When a Royal Commission, Board of Inquiry or Formal Review ceases to exist, all its records are to be transferred to the Department of Premier and Cabinet, unless the Premier, by instrument, determines that they are to be transferred to another public office.

(2) Despite subsection 8A of the Public Records Act 1973, the Department of Premier and Cabinet or other public office must cause the records to be transferred to the custody of the Public Record Office as soon as practicable after their receipt.

(3) Records transferred to the Department of Premier and Cabinet, another public office or the Public Record Office under this section are to be held and dealt with on the same basis, and in the same manner, as the basis on which they were held, and the manner in which they could be dealt with, by the Royal Commission, Board of Inquiry or Formal Review.

(4) This section is subject to any arrangements made under section 2B(b) of the Public Records Act 1973.


public office has the same meaning as in the Public Records Act 1973.

125 Exemption from Freedom of Information Act 1982

(1) The Freedom of Information Act 1982 does not apply to—

(a) a document that is in the possession of a Royal Commission, Board of Inquiry or Formal Review; or



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(b) a document of a Royal Commission, Board of Inquiry or Formal Review that is in the possession of an agency at any time during which the Royal Commission, Board of Inquiry or Formal Review is in existence.


agency has the same meaning as in the Freedom of Information Act 1982;

document has the same meaning as in the Freedom of Information Act 1982.

126 Continuity of inquiries

(1) If a Royal Commission consists of more than one commissioner, a change in commissioners, or any other variation of the letters patent for the Royal Commission, does not affect the continuity of the Royal Commission.

(2) If a Board of Inquiry or Formal Review consists of more than one member, a change in membership, or any other variation of the establishing Order for the Board of Inquiry or establishing instrument for the Formal Review, does not affect the continuity of the Board of Inquiry or the Formal Review.

(3) Without limiting subsection (1) or (2)—

(a) any members of staff of the Royal Commission, Board of Inquiry or Formal Review continue as members of staff; and

(b) any information or evidence given to or obtained by, and any documents and other things produced to, the Royal Commission, Board of Inquiry or Formal Review before the variation may continue to be taken into consideration by the Royal Commission, Board of Inquiry or Formal Review; and



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(c) any arrangements or agreements entered into by or on behalf of the Royal Commission, Board of Inquiry or Formal Review that are in force immediately before the variation continue in force.

(4) This section is subject to the letters patent, establishing Order or establishing instrument.

Division 2—Ancillary provisions for offences

127 Definitions

In this Division—

body corporate has the same meaning as corporation has in section 57A of the Corporations Act;

officer in relation to a body corporate means—

(a) a person who is an officer (as defined by section 9 of the Corporations Act) of the body corporate; or

(b) a person (other than a person referred to in paragraph (a)), by whatever name called, who is concerned in, or takes part in, the management of the body corporate.

128 Criminal liability of officers of bodies corporate—accessorial liability

(1) If a body corporate commits an offence against a provision specified in Schedule 1, an officer of the body corporate also commits an offence against the provision if the officer—

(a) authorised or permitted the commission of the offence by the body corporate; or

(b) was knowingly concerned in any way (whether by act or omission) in the



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commission of the offence by the body corporate.

(2) Without limiting any other defence available to the officer, an officer of a body corporate may rely on a defence that would be available to the body corporate if it were charged with the offence with which the officer is charged and, in doing so, the officer bears the same burden of proof that the body corporate would bear.

(3) An officer of a body corporate may commit an offence against a provision specified in Schedule 1 whether or not the body corporate has been prosecuted for, or found guilty of, an offence against that provision.

(4) This section does not affect the operation of Subdivision (1) of Division 1 of Part II of the Crimes Act 1958.

129 Offences by bodies corporate

(1) If in a proceeding for an offence against this Act or the regulations it is necessary to establish the intention of a body corporate, it is sufficient to show that a servant or agent of the body corporate had that intention.

(2) A statement made by an officer of a body corporate is admissible as evidence against the body corporate in any proceeding against the body corporate for an offence against this Act or the regulations.

130 Maximum fine for bodies corporate

(1) If a body corporate is found guilty of an offence against this Act or the regulations and the court has power to fine the body corporate, it may,

S. 128(4) substituted by No. 10/2015 s. 15.



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unless the contrary intention appears, impose on the body corporate a fine not greater than 5 times the amount of the maximum fine that could be imposed by the court on a natural person found guilty of the same offence committed at the same time.

(2) This section has effect despite—

(a) anything to the contrary in the Sentencing Act 1991; and

(b) the prescription of a maximum fine for the offence applicable to all offenders.

131 Responsible agency for the Crown

(1) If proceedings are brought against the Crown for an offence against this Act or the regulations, the responsible agency in respect of the offence may be specified in any document initiating, or relating to, the proceedings.

(2) In this section, the responsible agency in respect of an offence is the agency of the Crown—

(a) whose acts or omissions are alleged to constitute the offence; or

(b) if that agency has ceased to exist, that is the successor of that agency; or

(c) if that agency has ceased to exist and there is no clear successor, that the court declares to be the responsible agency.

(3) The responsible agency in respect of an offence is entitled to act in proceedings against the Crown for the offence and, subject to any relevant rules of court, the procedural rights and obligations of the Crown as the accused in the proceedings are conferred or imposed on the responsible agency.

(4) The person prosecuting the offence may change the responsible agency during the proceedings



93

with the leave of the court.

132 Proceedings against successors to public bodies

(1) Proceedings for an offence against this Act or the regulations that were commenced against a public body before its dissolution, or that could have been commenced against a public body if not for its dissolution, may be continued or commenced against its successor if the successor is a public body.


public body has the same meaning as in the Independent Broad-based Anti-corruption Commission Act 2011.

Division 3—Regulations

133 Regulations

(1) The Governor in Council may make regulations for or with respect to any matter or thing required or permitted by this Act to be prescribed or necessary to be prescribed to give effect to this Act.

(2) The regulations—

(a) may be of general or limited application; and

(b) may differ according to differences in time, place or circumstance; and

(c) may leave any matter or thing to be from time to time determined, applied, dispensed with or regulated by a specified person or class of persons; and

(d) may provide in a specified case or class of case for the exemption of persons or things or a class of persons or things from any of the provisions of the regulations, whether unconditionally or on specified conditions



94

and either wholly or to the extent specified; and

(e) may confer powers or impose duties in connection with the regulations on any specified person or specified class of persons; and

(f) may apply, adopt or incorporate with or without modification, any matter contained in any document, code, standard, rule, specification or method formulated, issued, prescribed (whether under this or any other Act) or published by any person—

(i) wholly or partially or as amended by the regulations; or

(ii) as formulated, issued, prescribed (whether under this or any other Act) or published at the time the regulations are made or at any time before then; or

(iii) as formulated, issued, prescribed (whether under this or any other Act) or published from time to time; and

(g) may impose a penalty not exceeding 20 penalty units for a contravention of the regulations.

__________________



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PART 6—RELATED AND CONSEQUENTIAL AMENDMENTS

Division 1—Independent Broad-based Anti-corruption Commission Act 2011

134 Disclosure or provision of information by the IBAC

(1) In section 41(1) of the Independent Broad-based Anti-corruption Commission Act 2011—

(a) in paragraph (d), for "officer." substitute "officer;";

(b) after paragraph (d) insert—

"(e) a Public Interest Monitor;

(f) a Coroner;

(g) a Royal Commission, Board of Inquiry or Formal Review;

(h) a body established under a law of the Commonwealth or of another State or of a Territory that is the equivalent of a Royal Commission, Board of Inquiry or Formal Review;

(i) a body having a similar function to a Royal Commission, Board of Inquiry or Formal Review that is prescribed by the regulations for the purpose of this subsection.".

(2) In section 41(3)(a) of the Independent Broad-based Anti-corruption Commission Act 2011, for "or (c)" substitute ", (c), (e), (f), (g), (h) or (i)".

(3) After section 41(4) of the Independent Broad-based Anti-corruption Commission Act 2011 insert—

"(5) In this section—



96

Board of Inquiry has the same meaning as in the Inquiries Act 2014;

Formal Review has the same meaning as in the Inquiries Act 2014;

Royal Commission means—

(a) a Royal Commission established under the Inquiries Act 2014; or

(b) a Royal Commission established under the prerogative of the Crown.".

135 Privilege against self-incrimination abrogated—witness summons

Section 144(3) of the Independent Broad-based Anti-corruption Commission Act 2011 is repealed.

Division 2—Parliamentary Committees Act 2003

136 New section 37A inserted

After section 37 of the Parliamentary Committees Act 2003 insert—

"37A Evidence given in private under section 28(3)

(1) Section 37(1) applies to the publishing of evidence given in private under section 28(3) if the Committee has informed the person giving the evidence that it is received by the Committee on the basis that it will be made public.

(2) Section 37(2) applies to the publishing of evidence in private under section 28(3) if the Committee has informed the person giving the evidence that it is received by the Committee on the basis that it remain private.".



97

137 Immunity from review

(1) For the heading to section 50 of the Parliamentary Committees Act 2003 substitute—

"Application of parliamentary privilege".

(2) In section 50(b) of the Parliamentary Committees Act 2003, after "court" insert ", tribunal, Royal Commission, Board of Inquiry or Formal Review".

(3) At the end of section 50 of the Parliamentary Committees Act 2003 insert—

"(2) In this section—








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Division 3—Public Administration Act 2004

138 Definitions

In section 4(1) of the Public Administration Act 2004—

(a) insert the following definitions—

"Board of Inquiry has the same meaning as in the Inquiries Act 2014;




(b) a Royal Commission established under the prerogative of the Crown;";

(b) in the definition of public official, after paragraph (j) insert—

"(k) a commissioner of a Royal Commission;

(l) a member of a Board of Inquiry or Formal Review;".

139 Public entities

After section 5(1)(f) of the Public Administration Act 2004 insert—

"(fa) a Royal Commission, Board of Inquiry or Formal Review; or".

140 Delegation

(1) After section 49(2)(c) of the Public Administration Act 2004 insert—



99

"(ca) the power under section 60C to compel the production of documents and other things or the attendance of witnesses;".

(2) After section 49(2) of the Public Administration Act 2004 insert—

"(3) Despite subsection (2)(ca), the Commissioner by instrument may delegate to an executive employed by the Commissioner the power under section 60C to compel the production of documents and other things or the attendance of witnesses.".

141 Inquiries

After section 56(2) of the Public Administration Act 2004 insert—

"(3) If an inquiry is conducted in relation to a body referred to in subsection (2), that body must comply with section 42 of this Act in relation to the inquiry even if a provision of an Act other than this Act has the effect that the body is not subject to this Act or to any part of this Act.".

142 New sections 57 and 58 substituted

For sections 57 and 58 of the Public Administration Act 2004 substitute—

"57 Manner of conducting inquiries

The Commission may conduct an inquiry in any manner that the Commission considers appropriate, subject to—


(b) the Premier's direction for the inquiry; and




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58 Evidence and representation

(1) In conducting an inquiry, the Commission is not bound by the rules of evidence or any practices or procedures applicable to courts of record and may inform itself on any matter as it sees fit.

(2) The Commission may require a person attending an inquiry, whether in accordance with a notice to attend or otherwise, to give evidence or answer questions on oath or affirmation.

(3) The Commissioner, or a person authorised to do so by the Commissioner, may administer an oath or affirmation to a person for the purposes of subsection (2).

(4) If the Commission agrees, a person attending an inquiry may be accompanied or represented by an Australian legal practitioner or other person.".

143 New section 60A inserted

After section 60 of the Public Administration Act 2004 insert—

"60A Royal Commissions, Boards of Inquiry and Formal Reviews

Nothing in this Division empowers the Commission to conduct, or the Premier to direct the conduct of, an inquiry into a Royal Commission, Board of Inquiry or Formal Review, or into the exercise of any function by or of a Royal Commission, Board of Inquiry or Formal Review.".



101

144 New Division 4A inserted in Part 4

After Division 4 of Part 4 of the Public Administration Act 2004 insert—

"Division 4A—Ancillary provisions for inquiries

60B Definitions

In this Division—

notice to attend means a notice served under section 60C(1)(b), (c) or (d);

notice to produce means a notice served under section 60C(1)(a).

60C Power to compel production of documents and other things or attendance of witness

(1) For the purposes of an inquiry, the Commission may serve written notice on a person requiring the person to—

(a) produce a specified document or other thing to the Commission or a person authorised by the Commission before a specified time and in the specified manner; or

(b) attend the Commission at a specified time and place to produce a specified document or other thing; or

(c) attend the Commission at a specified time and place, and from then on from day to day until excused, to give evidence; or



102

(d) attend the Commission at a specified time and place, and from then on from day to day until excused, to give evidence and to produce a specified document or other thing.

(2) A notice under subsection (1) must contain the following information—

(a) a statement that failure to comply with the notice without reasonable excuse is an offence, and stating the maximum penalty for that offence;

(b) examples of what may constitute a reasonable excuse for failing to comply with the notice.

Note

See sections 41(2) and (3) and 42 for other information-gathering powers of the Commission.

60D Service of notice to produce or notice to attend


(2) The Commission may serve a notice to attend requiring immediate attendance by a person if—

(a) the Commission considers on reasonable grounds that a delay in the person's attendance is likely to result in—




103






(4) A notice to produce or notice to attend directed to a body corporate must be served by leaving a copy of the notice at the registered office or principal place of business of the body corporate with a person apparently employed at that office or place and who is apparently at least 18 years of age.


60E Offence to fail to comply with a notice to produce or attend

A person who is duly served with a notice under section 60C must not, without reasonable excuse, refuse or fail to comply with the notice.


Notes

1 See also section 60G.



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60F Offence to fail to take oath, make affirmation or answer question

(1) A person who is duly served with a notice to attend under section 60C(1)(c) or (d) must not, without reasonable excuse—


(b) refuse or fail to answer a question that the person is required to answer by the Commission.


Note


(2) A person does not commit an offence against subsection (1) unless, before the person is required to take the oath or make the affirmation or answer the question, the Commission informs the person that refusal or failure to do so without reasonable excuse is an offence.

60G Statutory secrecy and confidentiality provisions

(1) The Commission may require a person to give information (including answering a question) or to produce a document or other thing in an inquiry despite the provision of another enactment that prohibits the disclosure of the information, document or other thing or imposes any other duty of



105

confidentiality on the person in relation to the information, document or other thing.

(2) If the Commission specifies that subsection (1) applies to its requirement—

(a) it is not a reasonable excuse for the person to refuse or fail to comply with the requirement that another enactment prohibits the person from giving the information or producing the document or other thing to the Commission or imposes a duty of confidentiality on the person in relation to the information, document or other thing; and

(b) the person is not subject to any criminal, civil, administrative or disciplinary proceedings or action only because the person complies with the requirement.

(3) If the Commission receives information or a document or other thing referred to in this section in an inquiry, any provision of another enactment that prohibits the disclosure of the information, document or other thing or imposes any other duty of confidentiality in relation to the information, document or other thing does not apply to the Commission.

60H Protection of participants

(1) The Commissioner has, in the performance of the Commissioner's functions in an inquiry, the same protection and immunity as a judge of the Supreme Court has in the performance of the judge's duties as judge.



106

(2) A person authorised by the Commission to perform a function in relation to an inquiry has, in the performance of the person's functions in relation to the inquiry, the same protection and immunity as a judge of the Supreme Court has in the performance of the judge's duties as judge.

(3) A person legally representing another person in an inquiry has the same protection and immunity as an Australian legal practitioner has in representing a party in proceedings in the Supreme Court.

(4) A person who gives information or evidence, or produces a document or other thing, to the Commission in an inquiry has the same protection and immunity as a witness has in proceedings in the Supreme Court.

60I Practice directions, statements and notes

(1) The Commission may from time to time issue practice directions, statements or notes in relation to its inquiries.

(2) Practice directions, statements or notes issued under subsection (1) must not be inconsistent with this Act or any regulations made under this Act.".

145 Transitional provision

After clause 15 of Schedule 2 to the Public Administration Act 2004 insert—

"16 Inquiries Act 2014

(1) Sections 57 and 58, as substituted by section 142 of the Inquiries Act 2014, and Division 4A of Part 4 as inserted by section 144 of that Act, apply to an inquiry under Division 4 of Part 4 that begins on or



107

after the commencement of section 142 of that Act.

(2) Sections 57 and 58, as in force immediately before the commencement of section 142 of the Inquiries Act 2014 continue to apply to an inquiry under Division 4 of Part 4 that was begun but not completed before the commencement of that section.".

Division 4—Consequential repeals and amendments

146 Repeal of Acts

The following Acts are repealed—

(a) Bushfires Royal Commission (Report) Act 2009;

(b) Evidence (Commissions) Act 1982;

(c) Longford Royal Commission (Report) Act 1999.

147 Consequential amendments

On the coming into operation of an item in Schedule 2, the Act specified in the heading to that item is amended as set out in that item.

148 Amendment consequential on Legal Profession Uniform Law Application Act 2014

In section 3, the definition of Australian legal practitioner is repealed.

Division 5—Repeal of Part and Schedule 2

149 Repeal of Part and Schedule 2

This Part and Schedule 2 are repealed on the first anniversary of the first day on which all of their provisions are in operation.

Note

The repeal of this Part and Schedule 2 do not affect the continuing operation of the amendments made by them (see section 15(1) of



108

the Interpretation of Legislation Act 1984).__________________



109

Part 7—Transitional

150 Inquiries by commissions and boards under Part IVA of the Constitution Act 1975

(1) Despite the repeal of Part IVA of the Constitution Act 1975—

(a) a former commission or former board has, and is to be taken always to have had, the power to continue a current inquiry; and

(b) the Governor in Council may amend the letters patent or other instrument of appointment of a former commission or former board in relation to a current inquiry as if that Part had not been repealed.


current inquiry means an inquiry by a former commission or former board that was begun but has not been completed before the repeal of Part IVA of the Constitution Act 1975;

former board means a board appointed under section 88C of the Constitution Act 1975 before the repeal of Part IVA of that Act;

former commission means a person or persons to whom a commission was issued under section 88B of the Constitution Act 1975 before the repeal of Part IVA of that Act.

Pt 7 (Heading and s. 150) inserted by No. 10/2015 s. 16.

S. 150 inserted by No. 10/2015 s. 16.



110

SCHEDULES

SCHEDULE 1

Section 128

OFFENCES TO WHICH ACCESSORIAL LIABILITY ATTACHES

1 Section 43

2 Section 45(2)

3 Section 46

4 Section 48(1)

5 Section 51(1)

6 Section 52(1)

7 Section 83

8 Section 85(2)

9 Section 86

10 Section 88(1)

11 Section 91(1)

12 Section 92(1)

13 Section 115

14 Section 117(2)

15 Section 118(1)

16 Section 121(1)

17 Section 122(1)

__________________



111

SCHEDULE 2

Section 147

CONSEQUENTIAL AMENDMENTS

1 Administrative Law Act 1978

1.1 In section 2, for the definition of tribunal substitute—

"tribunal means a person or body of persons who, in arriving at the decision in question, is or are by law required, whether by express direction or not, to act in a judicial manner to the extent of observing one or more of the rules of natural justice, but does not include—

(a) a court of law or a tribunal constituted or presided over by a Judge of the Supreme Court; or

(b) a Royal Commission, Board of Inquiry or Formal Review within the meaning of the Inquiries Act 2014.".

2 Ambulance Services Act 1986

2.1 In section 13(2), after "1958" insert ", as in force immediately before their repeal,".

3 Appeal Costs Act 1998


4 Architects Act 1991

4.1 In section 31, after "1958" insert ", as in force immediately before their repeal,".

5 Building Act 1993

5.1 In clause 13(2) of Schedule 3A, after "1958" insert ", as in force immediately before their



112

repeal,".

6 Bus Safety Act 2009


7 Charities Act 1978

7.1 For section 10(1) substitute—

"(1) For the purposes of conducting an inquiry under section 9, an inspector has the same powers as were conferred on a board appointed by the Governor in Council under Division 5 of Part I of the Evidence (Miscellaneous Provisions) Act 1958 immediately before the repeal of that Division.".

8 Children, Youth and Families Act 2005




9 Constitution Act 1975

9.1 Part IVA is repealed.

10 Co-operative Housing Societies Act 1958



10.3 Section 72B(2)(c)(x) is repealed.



113

11 Corrections Act 1986

11.1 In section 71, for "21, 21A and the Rules and Orders made under section 20(4) of the Evidence (Miscellaneous Provisions) Act 1958" substitute "21 and 21A of the Evidence (Miscellaneous Provisions) Act 1958, as in force immediately before their repeal,".

12 Country Fire Authority Act 1958

12.1 In section 74N, after "1958" insert ", as in force immediately before their repeal,".

13 Defamation Act 2005

13.1 In section 4—






(b) in the definition of Australian tribunal, after "Royal Commission" insert ", Board of Inquiry".

14 Disability Act 2006


14.2 In section 127, after "1958" insert ", as in force immediately before its repeal,".



114

15 Education and Training Reform Act 2006

15.1 In section 5.8.9, after "1958" insert ", as in force immediately before their repeal,".

16 Evidence (Miscellaneous Provisions) Act 1958

16.1 In section 3(1) in the definition of legal proceeding, after "judicially", insert "including a Royal Commission or Board of Inquiry under the Inquiries Act 2014".

16.2 Division 5 of Part I is repealed.

16.3 Section 30 is repealed.

16.4 For section 164 substitute—

"164 Transitional provision—Inquiries Act 2014

(1) Division 5 of Part I, or any provision of that Division, that applied to a board or a commission referred to in that Division immediately before the commencement day continues to apply, despite its repeal, to that board or commission.

(2) If another Act, as in force immediately before the commencement day, provided that Division 5 of Part I, or any provision of that Division, applies for the purposes of that other Act or for the purposes of an inquiry, investigation, hearing, appeal, review or other proceeding under that other Act, that Division or provision continues to apply, despite its repeal, for those purposes.

(3) Section 30, as in force immediately before the commencement day continues to apply in relation to a board or commission that was, immediately before that repeal, empowered under the provisions of this Act to summon witnesses.



115


commencement day means the day on which item 16.2 of Schedule 2 to the Inquiries Act 2014 comes into operation.".

17 Firearms Act 1996


18 Freedom of Information Act 1982

18.1 In section 5(1)—







(b) in the definition of prescribed authority, for paragraph (a)(iii) substitute—

"(iii) a Royal Commission, Board of Inquiry or Formal Review;".

18.2 Section 15(2) is repealed.

18.3 After section 70 insert—



116

"71 Transitional provision—Inquiries Act 2014

Section 15(2), as in force immediately before its repeal, continues to apply to records of a Royal Commission that were in the custody of the Public Record Office immediately before the commencement of item 18.2 of Schedule 2 to the Inquiries Act 2014.".

19 Health Records Act 2001


"14A Royal Commissions etc.

(1) Nothing in this Act or in any HPP applies in respect of the collection, holding, management, use, disclosure or transfer of health information by a Royal Commission, a Board of Inquiry or a Formal Review for the purposes of, or in connection with, the performance of its functions.







20 Health Services Act 1988

20.1 In section 144(2)(a), after "1958" insert ", as in force immediately before their repeal,".

21 Health Services (Conciliation and Review) Act 1987



117


21.2 In section 31(1), after "1958" insert ", as in force immediately before its repeal,".

22 Information Privacy Act 2000


"10AA Royal Commissions etc.

(1) Nothing in this Act or in any IPP applies in respect of the collection, holding, management, use, disclosure or transfer of personal information by a Royal Commission, a Board of Inquiry or a Formal Review for the purposes of, or in connection with, the performance of its functions.







23 Interpretation of Legislation Act 1984

23.1 In section 35(b)(iv), after "Inquiry" insert ", Formal Reviews".

24 Local Government Act 1989

24.1 In section 9(3), after "1958" insert ", as in force immediately before their repeal".

24.2 In section 214—



118

(a) in subsection (1), for "has under the Evidence (Miscellaneous Provisions) Act 1958" substitute "had under Division 5 of Part I of the Evidence (Miscellaneous Provisions) Act 1958 immediately before the repeal of that Division";

(b) in subsection (2), after "1958" insert ", as in force immediately before their repeal,".

25 Marine Safety Act 2010


26 Mineral Resources (Sustainable Development) Act 1990

26.1 In section 99(2), after "1958" insert ", as in force immediately before their repeal".

27 Ombudsman Act 1973


27.2 For items 9 and 10 in Schedule 2 substitute—

"9 A Royal Commission, whether established under the Inquiries Act 2014 or under the prerogative of the Crown, and Royal Commission officers within the meaning of that Act

10 A Board of Inquiry established under the Inquiries Act 2014 and Board of Inquiry officers within the meaning of that Act

10A A Formal Review established under the Inquiries Act 2014 and Formal Review officers within the meaning of that Act".

27.3 For items 20 and 21 in Schedule 3 substitute—

"20 A Royal Commission, whether established under the Inquiries Act 2014 or under the



119

prerogative of the Crown

21 A Board of Inquiry established under the Inquiries Act 2014

21A A Formal Review established under the Inquiries Act 2014".

28 Privacy and Data Protection Act 2014


"10A Royal Commissions etc.

(1) Nothing in this Act or in any Information Privacy Principle or any data security standard applies in respect of the collection, holding, management, use, disclosure or transfer of information by a Royal Commission, a Board of Inquiry or a Formal Review for the purposes of, or in connection with, the performance of its functions.







29 Protected Disclosure Act 2012

29.1 For section 14(i) and (j) substitute—

"(i) a commissioner within the meaning of the Inquiries Act 2014;



120

(j) a member of a Board of Inquiry within the meaning of the Inquiries Act 2014;".

30 Public Health and Wellbeing Act 2008


31 Public Records Act 1973

31.1 In section 2(1), in the definition of public office—

(a) in paragraph (c) omit "and";

(b) after paragraph (d) insert—

"(e) a Royal Commission, whether established under the Inquiries Act 2014 or under the prerogative of the Crown;

(f) a Board of Inquiry or Formal Review established under the Inquiries Act 2014;".

32 Rail Safety (Local Operations) Act 2006


33 State Electricity Commission Act 1958

33.1 In clause 9 of the Sixth Schedule, after "1958" insert ", as in force immediately before their repeal,".

34 Surveillance Devices Act 1999

34.1 In section 30I(7), for the definition of proceeding substitute—

"proceeding includes—

(a) a proceeding before a court or tribunal; and



121

(b) a proceeding of a Royal Commission, whether established under the Inquiries Act 2014 or under the prerogative of the Crown; and

(c) a proceeding of a Board of Inquiry or Formal Review established under the Inquiries Act 2014; and

(d) a proceeding before a person or body to which Division 5 of Part I of the Evidence (Miscellaneous Provisions) Act 1958, as in force immediately before the repeal of that Division, applies.".

35 Surveying Act 2004


36 Transfer of Land Act 1958


37 Transport Accident Act 1986

37.1 Section 131(2)(e) is repealed.

38 Transport (Compliance and Miscellaneous) Act 1983

38.1 In section 228O(2), after "1958" insert ", as in force immediately before their repeal,".

39 Veterinary Practice Act 1997


40 Victims of Crime Assistance Act 1996


41 Victoria Grants Commission Act 1976



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41.1 In section 18, for "and of rules and orders made under subsection (4) of section 20 of that Act" substitute ", as in force immediately before their repeal,".

42 Victoria Police Act 2013

42.1 For section 10(4)(h) and (i) substitute—

"(h) a Board of Inquiry or Formal Review established under the Inquiries Act 2014;".


43 Victorian Commission for Gambling and Liquor Regulation Act 2011

43.1 In section 33(3), after "1958" insert ", as in force immediately before the repeal of that Division,".

44 Victorian Inspectorate Act 2011

44.1 Section 70(3) is repealed.

45 Witness Protection Act 1991

45.1 In section 3(1), the definition of commission of inquiry is repealed.

45.2 In section 9B(3), in the definition of civil proceeding, for "commission of inquiry" substitute "Board of Inquiry".

45.3 In section 10A—

(a) in subsection (1), for "commission of inquiry" substitute "Board of Inquiry";

(b) in subsection (2), for "or commission" substitute ", Royal Commission or Board of Inquiry".

46 Workplace Injury Rehabilitation and Compensation Act 2013

46.1 Section 412(2)(a)(x) is repealed.



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47 Wrongs Act 1958

47.1 In section 14I, in the definition of civil proceeding, for paragraph (c) substitute—

"(c) a proceeding of a Royal Commission, whether established under the Inquiries Act 2014 or under the prerogative of the Crown; and

(d) a proceeding of a Board of Inquiry or Formal Review established under the Inquiries Act 2014;".═══════════════



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Endnotes1 General information

See www.legislation.vic.gov.au for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information.

Minister's second reading speech—

Legislative Assembly: 21 August 2014

Legislative Council: 4 September 2014

The long title for the Bill for this Act was "A Bill for an Act to provide for the establishment and conduct of inquiries in Victoria, to make related and consequential amendments to other Acts and for other purposes."

The Inquiries Act 2014 was assented to on 23 September 2014 and came into operation as follows:

Sections 1–147, 149 on 15 October 2014: Special Gazette (No. 364) 14 October 2014 page 2; rest of Act not yet proclaimed.



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2 Table of AmendmentsThis publication incorporates amendments made to the Inquiries Act 2014 by Acts and subordinate instruments.

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Inquiries Act 2014, No. 67/2014Assent Date: 23.9.14Commencement Date: S. 148 on 1.7.15: s. 2(2)Current State: This information relates only to the provision/s

amending the Inquiries Act 2014

Parliamentary Committees and Inquiries Acts Amendment Act 2015, No. 10/2015

Assent Date: 21.4.15Commencement Date: Ss 12–16 on 22.4.15: s. 2Current State: This information relates only to the provision/s

amending the Inquiries Act 2014

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––



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3 Amendments Not in OperationNot updated for this publication.



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4 Explanatory detailsNo entries at date of publication.



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Documents

FILE/14-67a003.docx · Web viewestablishing the Royal Commission as the commissioner who is to chair the Royal Commission; (b)of a Board of Inquiry, means— (i)if there is only